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JudgmentEDWIN ONCHARO OYARO VS The Republic3 min read

EDWIN ONCHARO OYARO VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

(From the original Conviction and Sentence in the Principal Magistrate’s Court at Keroka, Criminal Case No. MCCR E386 of 2022 by Hon. B.M. Kimtai, Principal Magistrate on 4th April 2022.)

  1. This ruling is in respect to an Application for revision of sentence. The Applicant was convicted for the offences of malicious damage to property contrary to Section 339(1) of the Penal Code in the first count and assault causing actual bodily harm contrary to Section 251 of the Penal Code in the second count. He was sentenced to serve 3 years’ imprisonment for the first count and 1-year imprisonment for the second count. The Applicant states that he has served a substantial part of his sentence and is remaining with 11 months to complete the sentence.
  2. The Prosecution Counsel, Mr. Chirchir, did not oppose the Application. The only issue for determination is whether the Applicant has made out a case for revision of sentence.
  3. The rights of an accused person are spelt out under Article 50 of the Constitution which stipulates as follows: -

(2) Every accused person has the right to a fair trial, which included the right-

(q) if convicted, to appeal to, or to apply for review by a higher court as prescribed by law.

  1. Article 165 vests the High Court with powers of revision as follows:-

165. 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.

  1. Sections 362 and 364 of the Criminal Procedure Code outline the manner in which the High Court shall exercise its Revisionary powers as follows: -

362. Power of the High Court to Call for Records

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.

364. Powers of the High Court on Revision

  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.

  1. 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 defense: 

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.

  1. 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 that might have been inflicted by the court which imposed the sentence.
  2. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
  3. When an appeal lies from a finding a 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.
  4. It is the duty of this Court to determine whether the sentence meted by the trial court was appropriate, legal and correct.
  5. It is trite that sentencing is a matter that falls at the discretion of the trial court and that an appellate will only interfere with the exercise of such discretion where the sentence is shown to be manifestly excessive or grossly inadequate or where the trial court overlooked some material factor or acted on wrong principles. In Wagude vs. R (1983) KLR 569 the learned Appellate Judges (Kneller, Hancox JJA. & Chesoni, Ag. JA.)  stated in this regards thus: -

“The Court may interfere with the sentence only if it shown that it was manifestly excessive. In this instance two years’ Imprisonment for stealing by a person employed in the public service was not manifestly excessive.”

  1. I have considered the sentences passed by the trial court and find that they were appropriate, fair and legal. I find no reason to interfere with the same. I find that the instant application is not merited and I therefore dismiss it. 
  2. It is so ordered.


    EDWIN ONCHARO OYARO VS The Republic EDWIN ONCHARO OYARO VS The Republic