[2019] KEHC 8546 (KLR)
The court found that the error in referencing the accused persons in the judgment and subsequent proceedings was an omission that could be corrected by the trial court. Since no sentence had been passed and the error was procedural, not affecting the substance of the judgment, the High Court set aside the...
Source-derived case information.
- Citation
- [2019] KEHC 8546 (KLR)
- Parties
- Applicant: Nicholas Mutai Mwendwa; Applicant: Gabriel Kimanzi Munyao; Applicant: Stephen Muthangya; Applicant: Solomon Muthui Munyambu; Applicant: Stephen Muthami Kilonzo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 254 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Revision Application
- Outcome
- Proceedings of 24th October 2018 and subsequent orders (except judgment) set aside; file to be placed before trial magistrate for rectification and retaking of mitigation prior to sentencing.
- Judges
- LN Mutende
- Legal Topics
- Criminal Revision, Judgment Error Correction, Sentencing Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Mutai Mwendwa
Applicant
Gabriel Kimanzi Munyao
Applicant
Stephen Muthangya
Applicant
Solomon Muthui Munyambu
Applicant
Stephen Muthami Kilonzo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision Application
Legal Issues
- 1 Whether the trial court's error in referencing the accused persons in the judgment and subsequent proceedings was proper and regular.
- 2 Whether the proceedings after the judgment, including mitigation and sentencing, were affected by the error and require rectification.
Ratio Decidendi
The court found that the error in referencing the accused persons in the judgment and subsequent proceedings was an omission that could be corrected by the trial court. Since no sentence had been passed and the error was procedural, not affecting the substance of the judgment, the High Court set aside the proceedings of 24th October 2018 and subsequent orders (except the judgment) and directed the file to be placed before the trial magistrate for rectification of the errors and for the retaking of pre-sentence address (mitigation) by the convicted accused persons prior to sentencing. The court emphasized that the error was not inconsistent with substantial justice and could be remedied...
Court Disposition
Proceedings of 24th October 2018 and subsequent orders (except judgment) set aside; file to be placed before trial magistrate for rectification and retaking of mitigation prior to sentencing.
Orders
- Proceedings of 24th October 2018 and subsequent orders apart from the judgment are set aside.
- File to be placed before Hon. Kirugumi for rectification of errors in reference to the accused persons.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL REVISION CASE NO. 254 OF 2018
NICHOLAS MUTAI MWENDWA..................................1ST APPLICANT
GABRIEL KIMANZI MUNYAO....................................2ND APPLICANT
STEPHEN MUTHANGYA...............................................3RD APPLICANT
SOLOMON MUTHUI MUNYAMBU.............................4TH APPLICANT
STEPHEN MUTHAMI KILONZO.................................5TH APPLICANT
VERSUS
REPUBLIC.............................................................................RESPONDENT
R U L I N G
1. This file has been placed before me for purposes of revision pursuant to Section 362of the Criminal Procedure Code.From the content of the letter dated 20th February, 2019by Hon. G. W. Kirugumi, Senior Resident Magistrate, Mwingi Law Courts,she heard the case and at the point of delivering Judgment an error occurred in that Stephen Muthami Kilonzowho was convicted was released while Stephen Muthangya Mutuawho was acquitted stood convicted. According to her the conviction and acquittal were proper save for reference to the Accused persons.
2. When the error was pointed out to the learned trial Magistrate she extended bail to both Accused persons until further orders by this Court.
3. I am therefore called upon to examine the record for purposes of satisfying myself as to the correctness, propriety and regularity of the proceedings.
4. After the Judgment was delivered the record reads thus:
“... State Counsel – No previous records.
Mitigation
I am the sole bread winner. My father does not work. My mother has no job. I married recently. My wife depends on me. She delivered not long ago. My family will suffer. I also pay school fees.
3rd Accused mitigation
I am the sole bread winner. My father is not able to support us. I have never been convicted of a crime.
Court – Social inquiry report.
Mention on 5/11/18 for sentencing.”
What is not clear is who addressed the Court in mitigation for purposes of informing itself as to what sentence to pass. It is worth noting that after mitigation the Court requested for a social inquiry report. Therefore no sentence had been meted out.
5. The error alluded to by the learned Magistrate arose out of an omission that could have been corrected by the Court after it was pointed out by the learned defence Counsel Mr. Nziliand the learned State Counsel Mr. Maina.What happened was not inconsistent with substantial justice.
6. In the premises, I set aside the proceedings of the 24th October, 2018and the subsequent orders apart from the Judgment and direct that the file shall be placed before the Hon. Kirugumifor rectification of the errors in reference to the Accused persons and for the retaking of pre-sentence address (mitigation) by the Accused persons that she convicted prior to sentencing them.
7. It is so ordered.
Dated, Signed and Deliveredat Kitui this 26thday of February,2019.
L. N. MUTENDE
JUDGE