1. By a Notice of Motion dated 2/12/2024, the Applicant hereon seeks orders that: -
i. Spent.
ii. This Honourable court be pleased to review, vary, set aside, vacate and/or discharge the sentence passed by the trial Court on 7/12/2023 and substitute the same with a lesser sentence and or grant the Applicant the option to serve a non-custodial sentence and/or pay fine.
iii. This Honourable Court be pleased to substitute the (5) years imprisonment with non-custodial few years.
iv. Any other relief that this Honourable Court deems fit and just to grant.
2. The application is premised on the grounds therein and it is further supported by the Affidavit sworn by the Applicant on the same date.
3. In the Affidavit, the Applicant deposed that on 16/03/2022, he was charged before the Iten Senior Principal Magistrate’s Court with the offence of grievous harm contrary to Section 234 of the Penal Code and upon being read to the said charges he pleaded not guilty and the trial Court then fixed the matter for hearing. That the prosecution called a total of 6 witnesses and the Court upon hearing and considering the evidence of the said witnesses it delivered its ruling where it found that he had a case to answer. He was put on his defence and he gave sworn evidence and called one witness.
4. That in its Judgment delivered on 7/12/2023 and he was found guilty, convicted and sentenced to five years’ imprisonment without the option of a non-custodian sentence. The applicant contends that the learned trial Magistrate failed to consider his defence and the fact that the complainant has provoked him in his own home, threatening him and thus causing him to defend himself.
5. According to the Applicant it is only prudent, fair and just that this Court reviews, varies, set aside, discharge and/or vacates the sentence of 5 years imprisonment and substitute it with a lesser sentence, give an alternative of non-custodial sentence and/ or a lenient fine. The Applicant added that he has a young family with children who are school going and it is only in the interest of justice that this Honourable Court allows the present Application so as to enable him to go back to his family and help in providing for his children to enable them progress with their studies.
6. In conclusion, the Applicant deposed that he is remorseful about the incident. He then urged the Court to consider the period he has already spent in prison. The Application is unopposed.
7. The Application was canvassed vide written submissions.
The Applicant’s Submissions
8. Counsel for the Applicant submitted that the sole issue for determination is whether the Court should exercise its power of revision to alter the sentence imposed by the trial Court. Counsel then cited Article 165(6) and (7) of the Constitution of Kenya, 2010 and Section 364 of the Criminal Procedure Code. Counsel urged that the Applicant seeks revision of the sentence meted out by the Magistrate’s Court. That the prayer for revision is premised on the powers vested in this Court by dint of Section 362 of the Criminal Procedure Code and that this Court principally has to satisfy itself as to the correctness, legality or propriety of any finding sentence or order recorded or passed and also as to the regularity of any proceedings of any Subordinate Court. Counsel urged that where the Court finds that the findings, sentence, or order recorded or passed by the Subordinate Court was either not correct, lawful or proper, the remedy under Section 364 is either to reverse the sentence where there is a conviction or later the finding while maintaining the sentence, reduce or increase the sentence as prescribed.
9. Counsel further submitted that The Sentencing Policy Guidelines stated that the effect of the mitigating circumstances is to lessen the term of a sentence. Counsel contended that there were mitigating circumstances in this case which were that the Accused was a 1st offender, a family man with school going children and offered apologies for committing the offence. Counsel cited paragraph 7.18 of the Sentencing Policy and Guidelines and the case of Elisha Kipleting V Republic [2021]eKLR where the Court stated as follows;
Hence, the Guidelines recommend a three-step approach to sentencing thus; firstly, that the sentencing options provided by the specific statute creating the offence be ascertained; secondly, that a decision be taken as to whether a non-custodial or a custodial sentence would be the most appropriate order in the circumstances and, thirdly, if custodial sentence is the most appropriate option, the duration thereof ought to be determined, taking into account the mitigating and aggravating circumstances; examples of which are set out in the said Guidelines. Moreover, even where custodial sentence is deemed the most appropriate, the Guidelines require that care be taken to ensure even-handedness in sentencing.
10. Counsel further submitted that the complainant during the hearing confirmed that he had gone to the Applicant’s home where they took alcohol and it was after they were both intoxicated that the fight erupted and the complainant got injured in the process and that the Applicant had stated that the complainant was the one who provoked him by shouting his wife’s name. Counsel contended that the trial Court failed to consider that both the complainant and the Applicant were intoxicated and that it was the complainant who had provoked the Applicant before he got injured. Counsel added that it only fair and just to consider those statements while evaluating the matter a fresh. Counsel urged the Court to accord to accord the Applicant the chance to at least fend for his young family and ensure that his children get a chance to go to school by providing their school fees and indicated in his Supporting Affidavit.
11. In the end, Counsel urged the Court for leniency on behalf of the Applicant who has serving his jail term since December, 2023.
Determination
12. The High Court’s power of revision is set out in Article 165 (6) and (7) which provides: -
(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 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.
13. Section 362 of the Criminal Procedure Code provides:-
14. The High Court may call 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.
15. Section 364(1) of the Criminal Procedure Code provides:-
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 his 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 section 354, 357 and 358, and may enhance 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.
16. The revisionary jurisdiction of the High Court was discussed by Odunga J in a persuasive decision of Joseph Nduvi Mbuvi vs Republic [2019] eKLR:-
“In my considered view, the object of the revision 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.”
17. Under Section 234 of the Penal Code the punishment for one found guilty of grievous harm is imprisonment for life. The Applicant was sentenced to serve 5 years’ imprisonment by the trial Court. The Applicant seeks a sentence review. That he should serve a non-custodial sentence.
18. In the case of Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus: -
“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered
19. I have considered and examined the proceedings before the lower court in respect to the criminal case against the applicant herein. I have also read the judgement of the court and noted that the sentence imposed is five years’ imprisonment out of a possible term of life imprisonment. From my observation I note and I am satisfied that the entire record and including the impugned sentence is regular, proper and correct, the said sentence is legal, lawful and proper having been meted out after the Hon Magistrate considered the mitigation by the applicant. The fact that it is the opinion of the applicant that given the circumstances of his case as well as his mitigation he should have been given a lower sentence and if not, then a probation sentence is not sufficient reason to warrant the review of a sentence as long as the court is satisfied with the regularity, propriety, and correctness of the proceedings and the legality of the sentence of 5 years’ imprisonment.
20. However, in light of the fact that the appellant herein is a first offender, in my considered opinion, he ought to have been given an option of a fine by the Hon Magistrate which was not the case. For this reason, I find the appellant’s prayer to this effect to be merited and in this regard, I now hereby sentence him to a fine of Ks. 50,000/- and the term of imprisonment to continue in default of the payment of the fine. To this extent therefore, the applicant’s Application is allowed. Right of appeal 14 days.
Read Dated and Signed at ITEN on 3rd April 2025