[2023] KEHC 23494 (KLR)

Njoroge v Republic (Miscellaneous Application E338 of 2022) [2023] KEHC 23494 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23494 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application E338 of 2022

SM Mohochi, J

October 11, 2023

Between

Tyrus Wainaina Njoroge

Applicant

and

Republic

Respondent

Ruling

1. This is an Application for Criminal Revision, contesting the correctness, legality or propriety of the learned trial magistrate's Hon R Kefa (PM)’s sentence made on the 28th day of April, 2022 at Nakuru who sentenced the applicant to imprisonment sentence of two years on count one and a fine of Ksh 5,000/- upon default of payment of fine to serve two months imprisonment. All the sentences were to run concurrently.

2. The Applicant pleaded guilty to counts of Stealing contrary to Section 268 as read together with Section 275 and engaging in offensive conduct contrary to Section 94(1), all of thePenal Code cap 63.

3. The Applicant is the son of the Complainant victim.

4. Though no formal application or letter was availed by the Applicant the Court is duty-bound with the onerous task of undertaking a review without any pleading from the Applicant

5. This Application was placed before the Court on the July 17, 2023 the and the Court by way of directions, called for the Trial Court file in the Chief Magistrate’s Court at Nakuru, Criminal Case Number E1548 of 2022 Republic Vs Tyrus Wainaina Njoroge; that appropriate review orders shall thereafter be issued.

6. The Power of the High Court to call for records is provided for under Section 362 of theCriminal Procedure Code.“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.

7. Section 364 of the Criminal Procedure Code provide for the Powers of High Court on revision as follows:(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296(2) of the Panel Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

8. The trial records reveal that the Applicant pleaded guilty to two counts of Stealing contrary to Section 268 as read together with Section 275 and engaging in offensive conduct contrary to Section 94(1), all of the Penal Code cap 63, he was unrepresented.

9. The trial record reveals that the Applicant was sentenced to an imprisonment sentence of two years on count one, and a fine of Ksh 5,000/- upon default of payment of the fine to serve two months’ imprisonment on count two. All the sentences were to run concurrently against the maximum sentence provided for of Three (3) years for count one and a fine not exceeding kshs 5,000/- or to imprisonment for a term not exceeding six months or to both.

10. The trial record reveals that the Applicant sought for leniency in mitigation and that the Trial Court before imposing the sentence(s) considered the Applicant’s mitigation, that he was a 1st offender that he was remorseful and had pleaded guilty in the 1st instance.

11. . Sentencing is the discretion of the Trial Court. In Bernard Kimani Gacheru Vs Republic (2002) eKLR, the Court of Appeal stated that: -“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.

12. This Court must be reluctant to interfere in the exercise of judicial discretion in a lower court unless it is convinced that doing so would be in furtherance of the administration of justice. This principle was clearly stated by the Court of Appeal inMbogo v Shah(1968) EA 93 thus: -“A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”See alsoMwangi vs Wambugu (1984) KLR.

13. This Court finds that the sentence as imposed by the Trial Court was lawful and correct under the circumstances.

14. In the upshot this Court finds this Application to be without merit and the same is accordingly dismissed.

15. This Ruling shall be transmitted to the Rumuruti GK Prison where the Applicant is serving his sentenceIt is so Ordered.

SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAKURU ON THIS 11TH OCTOBER 2023________________________MOHOCHI S.MJUDGE