[2022] KEHC 15873 (KLR)

Wangondu v Republic (Criminal Revision E145 of 2022) [2022] KEHC 15873 (KLR) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15873 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Revision E145 of 2022

GL Nzioka, J

November 17, 2022

Between

John Gathara Wangondu

Applicant

and

Republic

Respondent

Ruling

1. The applicant was arraigned before the Senior Principal Magistrate’s Court at Engineer charged vide Criminal Case No E556 of 2022, with the offence of; house breaking and stealing contrary to section 304 (1) as read with section 279 (b) of the Penal Code. The particulars of the charge are as per the charge sheet.

2. He pleaded not guilty and the case proceeded to full hearing. At the conclusion of the case, the trial court rendered a judgment dated; August 4, 2022, wherein the applicant was found guilty and sentenced to serve five (5) years imprisonment.

3. However, he now seeks for sentence review based on the notice of motion application filed in court on; September 19, 2022, in which he prays that, the custodial sentence in question, be reduced or converted to a non-custodial sentence.

4. He relies on the memorandum of sentence review in which he states in the “mitigating grounds” as here below reproduced: -a.That, I am a first offender.b.That, I pray that this honourable court allow me to spend the remaining period of my sentence under community service order (CSO) or set me at liberty.c.That, I am remorseful of my offence and I have learnt to be a law-abiding citizen.d.That, I am from a poor family background.e.That, I did not give proper mitigation during my sentencing and hence would like to present during the hearing and determination of this application.f.That, I am the sole breadwinner of my family and my incarceration has placed them in a very difficult situation.g.That, I humbly beg this honourable court for leniency and reduce my five (5) year sentence.h.That, I am not appealing against sentence and conviction but applying for a review of sentence.

5. The matter was placed before the court for direction wherein, the respondent was given directions to file and serve a response within ten (10) days but the respondent did not file any response to the application. In the same directions, the court ordered for a pre-sentence report and a report dated; October 12, 2022, to that effect was filed.

6. Having considered the application in the light of the materials before the court, I find that, the only issue to determine is whether, the application meets the threshold for exercise of revisionary powers. The law that governs revisionary power of the High court is provided for under; sections 362 of the Criminal Procedure Code which states as follows:“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.” (Emphasis added).

7. The aforesaid provisions are supported by the provisions of; section 364 of the Criminal Procedure Code which states that: -(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.(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. It is clear from the above provisions that, the court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. The objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be involved where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.

9. It therefore follows that, in exercise of revision powers, it is not the responsibility of the High Court to take into account the benefit of the evidence, it merely has to see if the provisions of the law have been properly adhered to by the court whose order is the subject of the revision, as held in; Major SS Khanna v Brig FJ Dillon 1964 AIR 497, 1964 SCR (4) 409).

10. It is noteworthy therefore that, the revision jurisdiction does not allow the court to interfere and correct errors of facts, or of law when the order is within the jurisdiction of the subordinate court; even if the order is right or wrong, or in accordance with the law, unless it exercised its jurisdiction illegally or with material irregularity. Reference is made to the cases of; Wesley Kiptui Rutto & Another v Republic [2017] eKLR, Republic v Everlyne Wamuyu Ngumo (2016) eKLR, Public Prosecutors v Muhavi Bi Mond Jani & Another 1996 4 LRC 728, 743-5, DPP v Samuel Kimuche.

11. Having considered the application I find that, the applicant was charged and convicted of the offence under section 304 (1) (b) as read with section 304 (2) of the Penal Code, which states as follows:-“(1)Any person who—(b)having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.(2)If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.”

12. The sentence meted upon the applicant of (5) years imprisonment is thus legal, proper and correct. However, the evidence reveals that, the building that was broken into was a timber yard and not used for human dwelling. Therefore, the applicant should have been charged under section 306 of the Penal Code which states as follows: -“Any person who—(a)breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or(b)breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years” .

13. The saving grace is that, both offences carries same sentence and therefore, since the applicant has not generally appealed against conviction and sentence per se and wants the sentence be reviewed and converted to a non-custodial sentence under the Community Services Orders Act, I find that, the provisions of section 362 and 364 of the Criminal Procedure Code, do not apply and the application fails on revision.

14. Pursuant to the aforesaid section 3 of the Community Service Orders Act, No 10 of 1998, it is stipulated that: -(1)1) Where any person is convicted of an offence punishable with—(a)imprisonment for a term not exceeding three years, with or without the option of a fine; or(b)imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this act, make a community service order requiring the offender to perform community service.

15. I have further considered the pre-sentence report and note that, the applicant is stated to be 35 years old. That, he attained basic education up to class three (3), and has been “boda boda” rider up the time of his arrest. That, he separated from his wife and was living alone at his permanent place of abode at Ndaragwa. It stated that, he is a casual worker at the prison where he is incarcerated, has been rehabilitated and remorseful of his actions.

16. That, the parents support his application for sentence review stating that he got into conflict with the law through influence of his friends and there is no underlying threat if released. However, the complainant refused to be interviewed.

17. From the provisions cited above, this is not a suitable for community service order, as the subject sentence is over three (3) years. Furthermore, the pre-sentence report does not reveal any member of the community or even the administration who was interviewed to give an independent and objective opinion. Therefore I dismiss the application in its entirety.

18. It is so ordered

DATED, DELIVERED VIRTUALLY, AND SIGNED ON THIS 17TH DAY OF NOVEMBER, 2022GRACE L NZIOKAJUDGEIn the presence of;Applicant in personMs Maingi for the RespondentMs Ogutu Court Assistant