[2023] KEHC 24698 (KLR)

Nyabuto v Republic (Revision Case E107 of 2023) [2023] KEHC 24698 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24698 (KLR)

Republic of Kenya

In the High Court at Nyamira

Revision Case E107 of 2023

WA Okwany, J

November 2, 2023

Between

Dennis Ombui Nyabuto

Applicant

and

Republic

Respondent

(From the original Conviction and Sentence of Hon. C. Ombija – SRM Keroka dated and delivered on 13th June 2023 in the original Keroka SPM’s Court Criminal Case No. MCTR E291 of 2023)

Ruling

1. The Applicant herein was charged and convicted in Keroka Criminal Case No. MCTR/E291 of 2023 on four counts under the Traffic Act as follows: -i.Riding a motorcyle on a public road while being under the influence of alcohol contrary to section 44 (1) of the Traffic Act;ii.Riding a motorcycle on a public road without a riding license contrary to section 103B (5) as read with section 103B (7) of the Traffic Act;iii.Riding a motorcycle on a public road without a valid insurance cover contrary to section 103B (3) as read with section 103B (7) of the Traffic Act; andiv.Riding a motorcycle on a public road without a head helmet contrary to section 103B (1) as read with section 103B (7) of the Traffic Act.

2. The Applicant was sentenced to serve three years imprisonment or in the alternative, to pay a fine of Kshs. 100,000/=. He has is unable to pay the fine and has therefore been in custody since 13th June 2023.

3. The Applicant now seeks a review of the sentence imposed by the trial Magistrate through the present Application. The Application is supported by the Applicant’s affidavit and is premised on the grounds that the sentence is harsh and excessive, that he was involved in an accident where he lost his helmet and woke up in a police cell after being unconscious for several hours. He added that he did not consume alcohol as was alleged by the police and was unable to defend himself in court because he was confused from the accident. He stated that the motorcycle was purchased through a loan that was secured by his brother and was his only source of livelihood. He stated that he is a family man with three children and sickly parents who depend on him. He urged the Court to review the sentence and set him at liberty.

4. 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 includes the right-(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law.

5. 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.”

6. 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 thus: -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 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 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.

7. The duty of this Court is to examine whether the sentence imposed by the trial court was correct, appropriate and legal, bearing in mind the fact that sentencing is a duty of the trial court. (see the Court of Appeal decision in Bernard Kimani Gacheru vs. Republic [2002] eKLR.)

8. It is also trite that a court will only interfere with the sentence of a trial court where the same is not founded in law or is manifestly excessive. In R. vs. 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.”

9. I have considered the sentence imposed on the Applicant herein by the trial court. The offences for which the Applicant was charged and convicted are serious as they relate to the safety of not only the Applicant himself but also other road users. I however note that punishment that is excessive does not serve the interests of justice or society in any way.

10. In S vs. Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35, it was held thus: -“Plainly, any sentence imposed must have deterrent and retributive force. But of course, one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. ……. It is trite that it is in the interest of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”

11. I have considered the fact that the Applicant is the sole breadwinner of his family with school-going children who depend on him and was also taking care of his sickly aged parents. The trial court was required to consider these mitigating factors at sentencing in accordance with the principles stated in the Judiciary Sentencing Policy Guidelines, 2016.

12. In sum, I find that, in the circumstances of this case, the punishment imposed on the Applicant was excessive. I therefore find that the instant application is merited and I therefore allow it and set aside the sentence of 3 years imprisonment or a fine of Kshs. 100,000/= and substitute it with the 4 months that the Applicant has been in prison. It is my view that the period so far served in prison is adequate punishment for the said offences. I direct that the Applicant be set at liberty forthwith unless he is otherwise lawfully held.

13. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 2ND DAY OF NOVEMBER 2023. W. A. OKWANYJUDGE