(Arising from Mombasa Chief Magistrate Criminal Case Number E105/2023. REPUBLIC VS DERICK MWANGEKA (HON D. ODHIAMBO SRM)
1.The Applicant, moved Court under though the Application dated 12th February 2025, seeking revision in respect of the Sentence of the learned Senior Resident Magistrate D. Odhiambo of 11th February 20235 in Mombasa CMCR No. E105.
2. The Applicant herein is charged with trespass upon a restricted area contrary to Section 3(1) as read with section 11 of the Trespass Act Chapter 294 Laws of Kenya.
3. The particulars are that on the 18th January 2025 at around 0915 hours at Moi international Airport inner Perimeter area in Changamwe Subcounty within Mombasa County of the Coast Region, he trespassed into a restricted area namely inner perimeter without the permission of the Managing Director Kenya Air Ports Authority (KAA).
4.The Applicant pleaded guilty and after mitigation the Honourable court sentenced him to six (6) months imprisonment without an option of a fine.
5.He moved to this court stating that The sentence imposed was very high and excessive and he requested the High Court to intervene and review the same
6. The applicant stated that they appreciate the fact that the Honourable court has discretion but being a first offender, the court ought to have treated him with leniency.
7.He thus requested the High court to exercise its powers and call for the lower court file to certify its self on the proceedings and be pleased to substitute the sentence given by the Magistrate Court with a lighter sentence with the option of fine or non-custodial sentence.
8.The application is premised on the grounds that the Sentence imposed was irregular and unlawful .He is in custody and un represented and may not have cited the provisions of the law.
9.The Court on the 12th day of February 2025 called for the entire file in MOMBASA CMCR E105 OF 2025 for the purpose of satisfying itself as to the correctness, legality or propriety of any finding.
10.From the Record, the Applicant was charged, he pleaded guilty and he was convicted and sentenced just like he stated.
Issue for determination
11.The issue for determination is whether the Applicant has established a case for revision based on the provisions of Article 165 (6) of the Constitution and under section 362 of the Criminal Procedure Code.
The Law
12.The High Court power of revision is set out in Article 165 which provides:“(6)he 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, empowers the High Court to 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.
14.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.”
15. In the case of Prosecutor v Stephen Lesinko [2018] eKLR Nyakundi J outlined the principles to guide the Court when examining the issues pertaining to section 362 of the Criminal Procedure Code as follows: -
1.the decision is grossly erroneous;
2.Where there is no compliance with the provisions of the law;
3.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;
4.Where the material evidence on the parties is not considered; and
5.Where the judicial discretion is exercised arbitrarily or perversely if the lower Court ignores facts and tries the accused of lesser offence.
16.The foregoing provisions bestow jurisdiction to this Court to exercise revisionary powers in respect of orders of the Subordinate Courts. This Court is therefore possessed of the requisite jurisdiction to hear and determine this application.
17.Section 11 of the Trespass Act provides as hereunder:
General penalty; Any person guilty of an offence under this Act for which no penalty is expressly provided shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding two months or to both such fine and imprisonment.
18. From the above, clearly the sentence meted out was excessive.
19. I also note that he was a first offender who pleaded guilty and expressed his remorse. Further there were no aggravating circumstances.
20. Under the Sentencing Guidelines Policy the above factors ought to have been taken into account and exercised in favor of the Applicant.
21. I note he has indicated he is remorseful and any long incarceration may cause him to loose his chance of joining the NYS to which he currently qualified to join.
22.Ultimately, I find that the decision by the trial magistrate neither correct nor legal and it is a proper candidate for review on grounds set out in Section 362 of the Criminal Procedure Code .
23. The Applicants’ application is merited therefore he succeeds and the review is allowed .
24.The sentence is reviewed to a conditional discharge under section 35 of the penal code. That he should not re offend or trespass again or commit any other offence for a period of 6 months from today.
24. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 13 DAY OF JANUARY 2025
IN THE PRESENCE OF
THE APPLICANT
MR NGIRI FOR THE RESPONDENT
MS MAUREEN COURT ASSISTANT