[2023] KEHC 24697 (KLR)

Nyabuti v Republic (Criminal Revision E119 of 2023) [2023] KEHC 24697 (KLR) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24697 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Revision E119 of 2023

WA Okwany, J

November 1, 2023

Between

Vane Nyabuti

Applicant

and

Republic

Respondent

(From the original Conviction and Sentence of Hon. Munyekenye (SPM) Keroka dated and delivered on the 18th day of October 2023 in the original Keroka Senior Principal Magistrate’s Court Criminal Case No. E675 of 2023)

Ruling

1. The Applicant herein was charged and convicted on her own plea of guilty for the offence of being in possession of alcoholic drinks contrary to section 27 (1) (b) as read with section 27 (4) of the Alcoholic Drinks Control Act No. 4 of 2010. The trial court sentenced her to pay a fine of Kshs. 400,000/= or in default, to serve 24 months imprisonment. The applicant has been in custody since 18th October 2023.

2. This ruling is in respect to the Application dated October 27, 2023 wherein the Applicant seeks the revision of the sentence passed by Hon. Munyekenye (SPM) on October 18, 2023 in Keroka Criminal Case No. MCCR/E675 of 2023.

3. The Application is supported by the Applicant’s affidavit in which she avers that she is a first offender and has school-going children who were unable to go to school due to lack of school fees and are psychologically tortured by their mother’s incarceration.

4. The Applicant now seeks a review of her sentence on the grounds that she hails from a poor background and is unable to pay the fine imposed by the trial court.

5. Mr. Chirchir, learned counsel for the Respondent submitted that the sentence passed on the Applicant was lawful as the offence that she was charged with attracts a fine of a maximum of Kshs. 2 Million and imprisonment for a period not exceeding 5 years. He however observed that the sentence passed on the Applicant was harsh considering that she was a first offender and had pleaded ‘guilty’ thus saving court the time that would have been spent in a hearing.

6. Article 50 of the Constitution of Kenya provides for the rights of an accused person as follows: -(2)Every accused person has the right to a fair trial, which included the right-(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law.

7. This Court’s revisionary powers are premised on article 165 of the Constitution and Section 362 of the Criminal Procedure Code which provide as follows: -Article 1651. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial, or quasi-judicial function, but not over a superior court.Criminal Procedure Code362. Power of the High Court to Call for RecordsThe 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.”

8. Section 364 of the Criminal Procedure Code outlines the revisionary powers of the High Court under article 165 of the Constitution and section 362 of the Criminal Procedure Code and how they are to be exercised: -364. Powers of the High Court on Revision1. 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.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 defense: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 that 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 a 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.

9. The duty of this Court is to examine the sentence imposed by the trial court for correctness, appropriateness and legality bearing in mind that sentence is a duty of the trial court. (see Court of Appeal decision in Bernard Kimani Gacheru v Republic [2002] eKLR.)

10. It is also an established principle that the court will only interfere with the sentence of a trial court where the same is unfounded in law or is manifestly excessive. In R. v Mohamedali Jamal (1948) 15 EACA, 126, the Eastern Africa Court of Appeal held thus: -“It is well established that an appellate Court should not interfere with the discretion exercised by a trial Judge or Magistrate except in such cases where it appears that in assessing sentence, the judge has acted upon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive.”

11. I have considered the sentence imposed by the trial court. It is not lost on this Court that the offence in question has been found to be a catalyst for crime and in extreme cases, loss of life. However, punishment that is excessive does not serve the interests of justice or society in any way. (See the decision of the High Court at Kwazulu Natal in S. v Nchunu &another(AR 24/11) [2012] ZAKZPHC6).

12. I have also considered the fact that the Applicant is a first offender and the sole breadwinner of her family comprising school-going children who solely depend on her. These, in my view, are mitigating factors which the trial court ought to have considered during sentencing in accordance with the Judiciary Sentencing Policy Guidelines, 2016.

13. It is my finding that the punishment imposed on the Applicant was excessive. I find that the Applicant will benefit more from restorative justice through a non-custodial sentence. Since this is a matter involving a single parent who was trying to earn a living to sustain her children, it is my view that she should be empowered through other economic activities within the community to enable her to fend for her family so as to deter her from going back to the chang’aa (illegal alcoholic brew) business.

14. In conclusion, I find the application has merit and therefore set aside the sentence of a fine of Kshs. 400,000/= or in default, 24 months’ imprisonment and substitute it with a non-custodial sentence. I direct that the Applicant serves a six months Community Service Order at Nyamakoroto under the supervision of the Probation Officer. I further direct that the Probation Office to collaborate with the County Executive Office of Gender to assist the Applicant obtain some legal income earning activity before the lapse of the probationary period.

15. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 1ST DAY OF NOVEMBER 2023. W. A. OKWANYJUDGE