[2023] KEHC 25046 (KLR)

Wanjala v Republic (Criminal Revision E076 of 2023) [2023] KEHC 25046 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25046 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E076 of 2023

JRA Wananda, J

November 10, 2023

Between

Tom Micah Wanjala

Applicant

and

Republic

Respondent

Ruling

1. Before the court for determination is a preliminary objection.

2. The background of this matter is that the applicant, Tom Micah Wanjala, was charged and convicted in Eldoret Chief Magistrate’s Court Criminal Case (SO) No 54 of 2018 of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. He was then on January 23, 2023 sentenced to serve 18 months imprisonment.

3. On April 14, 2023, the applicant filed before this court the notice of motion dated March 30, 2023 seeking the following orders:i.…………….. [Spent]ii.That the honourable court does consider probation or non-custodial sentence in regard to other options of imprisonment as the Applicant is a first offender.iii.That the Honourable Court be pleased to revise the judgment of the trial Magistrate in Criminal Case (SO) No 54 of 2018 at Eldoret Law Courts which was delivered on the January 23, 2023 and the sentence thereof.iv.That costs of this application be in the cause.

4. The application was filed through Messrs Wabomba Masinde and Associates and is stated to be brought under “sections 362 to 365 of the Criminal Procedure Code”. The application is supported by the affidavit sworn by the applicant’s counsel, Michael Wabomba Masinde.

5. The grounds of the application are basically that the Magistrate’s Court erred in law and fact by ignoring the submissions filed by the applicant, failing to notice that the charge sheet was defective insofar as the complainant insisted that she was detained at Webuye while the charge sheet indicated that the offence was committed in Eldoret, failing to note that the applicant was arrested by unknown people who were never called as witnesses, that penetration was not proved, that the court failed to consider that the complainant was at the time of the purported offence at the edge of reaching 18 years of age and was physically presented as ready for marriage, the evidence of the witnesses contained inconsistencies and that the Applicant’s conviction has affected his minor children who depend on him.

6. On June 12, 2023, the state/respondent, through senior prosecution counsel Ms. Emma Okok filed a notice of preliminary objection against the application. The grounds raised were as follows:i.The applicant is arguing an appeal under the guise of a revision as he is challenging both the conviction and sentence that was meted by a competent court.ii.The application lacks merit as it seeks remedies that can only be granted on an appeal since the decision of the trial court does not amount to an illegality or an irregularity to warrant the intervention of this honourable court in the manner sought.iii.The applicant has delved into merits of the decision of the trial court yet this honourable court in a revision should only consider the correctness, legality or propriety of the proceedings of the trial court’s decision aforementioned with a view of establishing whether the decision is manifestly irregular or illegal.

Hearing of the Application 7. The notice of preliminary objection was then canvassed by way of written submissions. The state filed its submissions on July 12, 2023 while the applicant filed earlier on July 5, 2023.

Respondent’s (State) Submissions 8. In respect to the parameters of a preliminary objection, Ms Okok cited the case of Peter Mungai v Joseph Ngaba Kuria & another; Leah Njeri Ndichu (Interested Party) [2022] eKLR and submitted that the issues raised in her preliminary objection are issues of law.

9. Counsel submitted further that the revisionary power of the High Court is provided under article 165(6) & (7) of the Constitution and section 362 of the Criminal Procedure Code and added that the application challenges both the conviction and the sentence and has delved into the merits of the decision of the trial court. She cited the cases of Director of Public Prosecution v Joseph Murimi Mugweru [2020] eKLR, Republic v John Wambua Munyao & 3 others [2018] eKLR and Republic v Samuel Gathuo Kamau [2016] eKLR.

10. In conclusion, she submitted that the High Court should invoke its revisionary jurisdiction only in exceptional circumstances and where the decision of the trial court is manifestly irregular or illegal. She reiterated that the trial court properly exercised its jurisdiction in convicting and sentencing the applicant and that if the applicant was dissatisfied with the decision of the trial court then he should seek a remedy by way of an appeal.

Applicant’s Submissions 11. Counsel for the Applicant submitted that the High Court is given power to call for records which is the power of revision under section 362 of the Criminal Procedure Code, during revision the High Court can examine both the conviction, which is otherwise known as a finding, and the sentence meted out by the trial court. He cited the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR and added that article 165(5) of the Constitution also provides that the High Court has supervisory jurisdiction over subordinate courts to make any order or give any directions it considers appropriate to ensure the fair administration of justice, a wide range of remedies are available to this court in exercising its revision powers and that the High Court has been given equal powers in revision as it would have in its appellate jurisdiction. He cited the Malaysia High Court case of Public Prosecutor v Muhari bin Mohd Jani andanother [1996] 4 LRC 728 at 734, 735 and added that the powers are wide and only limited in cases where the accused person is acquitted. He also cited the case of R v Mark Lloyd Steveson [2016] eKLR

12. In the end, counsel submitted that the application reveals the guiding pointers as to why revisionary intervention has been sought in this court, it has not delved into the merits of the decision of the trial court as the respondent claims and that the grounds raised are proper subjects of revision, if not considered by this court, will result to a grave injustice.

Analysis and determination 13. I have considered the application, response thereto, submissions filed and authorities submitted. I find that there is only one issue for determination:“Whether the grounds raised in the application fall within the matters contemplated under the High Court’s revisionary jurisdiction.”

14. I now proceed to analyse and answer the said issues.

15. The jurisdiction of the High Court with regard to revision is provided under the Constitution in article 165 (6) and (7) in the following terms:“6)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.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

16. Section 362 of the Criminal Procedure Code, then states as follows:“Revision362. Power of 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.”

17. The operative phrase in considering applications for revision is therefore “correctness, legality or propriety” of any finding, sentence or order made by the lower court.

18. On the powers that the High Court can exercise in its revision jurisdiction, Section 364 of the Criminal Procedure Code provides as follows:“364. Powers of 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.(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.

19. The revisionary jurisdiction of the High Court was examined by Odunga J in the case of Joseph Nduvi Mbuvi vs Republic [2019] eKLR as follows:“In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”

20. The operative phrase used by Odunga J here is therefore “to correct manifest irregularities or illegalities”.

21. On his part, Nyakundi J in Prosecutor vs Stephen Lesinko [2018] eKLR outlined the principles that should guide a Court in exercising the said jurisdiction to be as follows:a)Where the decision is grossly erroneous;b)Where there is no compliance with the provisions of the law;c)Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record;d)Where the material evidence on the parties is not considered; ande)Where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence.

22. As aforesaid, in this matter, the grounds of the application are basically that the Magistrate’s Court erred in law and fact by ignoring the Submissions filed by the applicant, failing to notice that the charge sheet was defective insofar as the complainant insisted that she was detained at Webuye while the charge sheet indicated that the offence was committed in Eldoret, failing to note that the applicant was arrested by unknown people who were never called as witnesses, that penetration was not proved, that the trial court failed to consider that the complainant was at the time of the purported offence at the edge of reaching 18 years of age and was physically presented as ready for marriage, the evidence of the witnesses contained inconsistencies and that the applicant’s conviction has affected his minor children who depend on him.

23. The issue which this court is called upon to determine in exercise of its supervisory and revisionary jurisdiction is whether there was “incorrectness”, “illegality” or “impropriety” in the trial court’s decision or in the process leading to the decision or whether the principle of fair administration of justice were violated. Do the grounds preferred meet the above threshold?

24. My consideration of the grounds preferred persuades me that save perhaps, on the issue of the alleged defectiveness of the charge sheet, the matters raised delve into the merits of the decision of the trial court. This, in my view, exceeds the mandate of this court in the exercise of its revisionary jurisdiction. This is because, as already stated, such jurisdiction is only exercisable where the grounds alleged are capable of demonstrating doubts on the “correctness”, “legality” or “propriety” of the proceedings or decision of the trial court. I do not believe that the grounds alleged herein can by themselves establish whether the decision was manifestly irregular or illegal. The court will therefore be engaging in a futile effort to entertain the application.

25. Even on the issue of the alleged defectiveness of the charge sheet, my view is that the same would be better canvassed in an appeal. In any case, section 382 of the Criminal Procedure Code provides as follows:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

26. Therefore, even if the charge sheet were defective, it would still not necessarily render the decision fatal. In determining whether a defect caused injustice, consideration will be made on whether the objection should have been raised at an earlier stage in the proceedings. I have perused the record of the trial Court and note that in the proceedings before it, the applicant was represented by an advocate, they participated in a manner to suggest that they fully understood the charge. The advocate cross-examined the witnesses and was able to put an appropriate defence. This is sufficient indication that they understood the particulars of the charge that the applicant faced. They did not at any time fault the charge sheet as being defective. In the circumstances, the applicant cannot allege to have been prejudiced in any way. The present challenge against the charge sheet appears to be an afterthought (see decision of Mativo J (as he then was) in MG v Republic (Criminal Appeal E051 of 2021) [2022] KEHC 14454 (KLR) (27 October 2022) (Judgment).

27. In dissecting the revisionary jurisdiction of the High Court, Mwongo J, in the case of Republic versus Perry Kusangara and others, HCCR Application No. 4/2020 observed as follows:“a balance has to be struck in the exercise of constitutional jurisdiction to ensure there is no appearance that its objective is to micro manage the trial court’s independence and conduct and management of its proceedings and the supervisory jurisdiction should not be used as a short cut for an appeal where circumstances for appeal clearly pertain and are more appropriate.”

28. The Applicant therefore needs to appreciate that in exercising its supervisory jurisdiction under article 165(6) of the Constitution, the High Court does not exercise appellate jurisdiction and therefore cannot review or re-weigh evidence upon which the determination of the lower court is based, the jurisdiction is only concerned with situations such as where the order, finding or decision made by the lower Court is manifestly erroneous, where it is made without jurisdiction, where it violates the applicant’s right to fair trial or where the order constitutes gross violation of the administration of justice. In exercising its revisionary jurisdiction, the High Court should not be expected to substitute the lower Court’s opinions with its own, particularly on matters of fact (see decision of Wakiaga J in George Aladwa Omwera v Republic [2016] eKLR).

29. The above principle was also enunciated by the Supreme Court of India in the case of Veerappa PillaivRemaan Ltd in the following terms:“The supervisory powers is obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made ……....”

30. The grounds preferred herein will compel the court to re-appreciate the evidence and thus technically to sit on appeal. This is unprocedural since reversionary jurisdiction is only to be exercised to correct manifest errors in the orders of the subordinate courts and should never be exercised in a manner that turns the revisional court into an appellate one. Reversionary jurisdiction cannot be exercised because the lower court is alleged to have taken a wrong view of the law or misapprehended the evidence tendered. In its revisional jurisdiction, the High Court would not be justified in substituting its own view for that of the magistrate on question of facts (see Pathummaa & anor v Muhammed 1986 (2) SCC 585).

31. As was stated by G. Nzyoka J in the case of Mburu v Republic (Criminal Revision E005 of 2023) [2023] KEHC 2278 (KLR) (24 March 2023) (Ruling), the court will only exercise its revisionary powers where the impugned sentence is either incorrect, illegal or improper. Thus, the objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will therefore only be invoked where the decision under challenge is grossly onerous or there is no compliance with the provisions of the law or the finding is based on no evidence or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. If this court were to entertain the grounds preferred herein, then it will be interfering with the exercise of the discretion of the trial court by substituting that discretion with its own. This will be to exceed the revisionary or supervisory jurisdiction which is limited to cases of incorrectness, illegality and impropriety of a decision and which has thereby resulted into a miscarriage of justice. I therefore find that the grounds alleged are incapable of demonstrating whether there was manifested illegality, error or irregularity in the decision of the trial Court to justify interference.

Final orders 32. The upshot of the above is as follows:xxxv.The notice of preliminary objection dated June 12, 2023 succeeds and is hereby upheld.xxxvi.Accordingly, the applicant’s notice of motion dated March 30, 2023 is hereby struck out.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 10TH DAY OF NOVEMBER 2023. ............................WANANDA J. R. ANUROJUDGE