1. The Applicant was jointly charged with another person with the offence of shop breaking and stealing contrary to sections 306(a) and 279(b) of the Penal Code. The particulars of the charge were that on the night of 11thJanuary 2020 at Riyabe in Masaba North Sub-County within Nyamira County, jointly with others not before the court, they broke and entered the shop of Josiah Makori and stole assorted items valued at KES.120,000. In the alternative, they were charged with handling stolen property contrary to section 322(1) as read with section 322(2) of the Penal Code.
2. Uponpon conclusion of the trial, the Applicant was convicted of the principal charge and, on 08th August 2024, sentenced to serve five (5) years' imprisonment.
3. Although framed as an application for probation, the relief sought invites this Court to revise the sentence imposed by the trial court. The Court's jurisdiction is therefore derived from sections 362 and 364 of the Criminal Procedure Code.
4. Section 362 of the Criminal Procedure Code provides:
"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."
5. The revisionary jurisdiction conferred by the foregoing provision is supervisory and limited. It exists to correct illegalities, improprieties, incorrect findings or material irregularities apparent on the face of the record. It is not intended to afford a convicted person a second opportunity to seek a lesser sentence or to invite the High Court to substitute its own discretion for that of the trial court merely because the applicant considers the sentence harsh or wishes to complete it on probation.
6. The Applicant was convicted of the offence of shop breaking stealing contrary to sections 306(a) of the Penal Code. Section 306(a) of the Penal Code provides:
"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."
7. The five (5) year sentence imposed upon the Applicant falls within the statutory limit prescribed under section 306(a) of the Penal Code. Being a lawful sentence, and in the absence of any illegality, impropriety or material irregularity in its imposition, there is no basis for this Court to interfere in exercise of its revisionary jurisdiction.
8. The Applicant has not demonstrated any illegality, impropriety, incorrectness or material irregularity in either the conviction or the sentence. His application is, in substance, a plea for leniency and for the custodial sentence to be substituted with a non-custodial one. Such considerations, however compelling, do not constitute a proper basis for the exercise of this Court's revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code.
9. Having examined the record in accordance with section 362 of the Criminal Procedure Code, I find that the conviction, sentence and proceedings were regular and free from any illegality, impropriety, incorrectness or material irregularity. The application is consequently devoid of merit.
10. Accordingly, the undated Notice of Motion seeking revision of sentence is dismissed. The conviction and sentence imposed by the trial court shall remain undisturbed.
2. Uponpon conclusion of the trial, the Applicant was convicted of the principal charge and, on 08th August 2024, sentenced to serve five (5) years' imprisonment.
3. Although framed as an application for probation, the relief sought invites this Court to revise the sentence imposed by the trial court. The Court's jurisdiction is therefore derived from sections 362 and 364 of the Criminal Procedure Code.
4. Section 362 of the Criminal Procedure Code provides:
"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."
5. The revisionary jurisdiction conferred by the foregoing provision is supervisory and limited. It exists to correct illegalities, improprieties, incorrect findings or material irregularities apparent on the face of the record. It is not intended to afford a convicted person a second opportunity to seek a lesser sentence or to invite the High Court to substitute its own discretion for that of the trial court merely because the applicant considers the sentence harsh or wishes to complete it on probation.
6. The Applicant was convicted of the offence of shop breaking stealing contrary to sections 306(a) of the Penal Code. Section 306(a) of the Penal Code provides:
"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."
7. The five (5) year sentence imposed upon the Applicant falls within the statutory limit prescribed under section 306(a) of the Penal Code. Being a lawful sentence, and in the absence of any illegality, impropriety or material irregularity in its imposition, there is no basis for this Court to interfere in exercise of its revisionary jurisdiction.
8. The Applicant has not demonstrated any illegality, impropriety, incorrectness or material irregularity in either the conviction or the sentence. His application is, in substance, a plea for leniency and for the custodial sentence to be substituted with a non-custodial one. Such considerations, however compelling, do not constitute a proper basis for the exercise of this Court's revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code.
9. Having examined the record in accordance with section 362 of the Criminal Procedure Code, I find that the conviction, sentence and proceedings were regular and free from any illegality, impropriety, incorrectness or material irregularity. The application is consequently devoid of merit.
10. Accordingly, the undated Notice of Motion seeking revision of sentence is dismissed. The conviction and sentence imposed by the trial court shall remain undisturbed.