Daniel Mutuma v Republic [2019] KEHC 8995 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CRIMINAL REVISION NO.131 OF 2018

DANIEL MUTUMA................APPLICANT

VERSUS

REPUBLIC............................RESPONDENT

(From original conviction and sentence in Criminal Case No. 256 of 2018 of the Senior Resident Magistrate HON. L.N. MESA  (SRM) at Marimanti delivered on 22/5/2018)

R U L I N G

1. The applicant (Daniel Mutuma) in this matter was charged with the offence  of House Breaking contrary to Section 304(1) of the Penal Code and  stealing contrary to Section 279(b) of the Penal Code vide Marimanti Principal Magistrate's Court  Crimina Case No.256 of 2018.  He pleaded  guilty to the  charges and was convicted on his own plea of guilty and  sentenced to serve  3 years for the first limb and 18 months for the 2nd limb  of the charge.

2. The applicant has now moved this court for revision of sentence under  Sections 362 and 364 of the Criminal Procedure Code on the grounds that  he was a student who dropped out of school for lack of school fees and that  he should be given a chance to go and finish his education and begin his life  afresh.

3. This application is supported by a defective affidavit which is neither  sworn/commissioned or dated but this court nevertheless called for the lower  court  file in order to satisfy myself on the correctness, regularity, legality  and propriety of the proceeding and sentence meted out against the  applicant.  I  have perused the charge presented at the trial and have noted  that the same was incompetent and bad for duplicity.  The charge sheet  presented to the trial court contained two distinct offences which though  founded on the same facts ought to have been set up in separate count to  enable the applicant know in sufficient detail what charge he was pleading  to.  The provisions of Section 135(2) of Criminal Procedure Code clearly  stipulate as follows:-

" Where more than one offence is charged in a charge or     information, a description of each offence so charged shall be set    out in a separate paragraph of the charge or information called a    count."

A look at the charge sheet shows that the offence of House Breaking  contrary to Section 304(1) and Stealing contrary to Section 279(b) of the  Penal Code was combined making it difficult and embarrassing for the  applicant to know exactly which offence was subject to the plea he was  required to plead.  This was an infringement on his Constitutional right as  Article 50(b) clearly states that every accused has a right to fair trial and  that includes right:

" to be informed of the charge, with sufficient details to answer to    it."

This court in the premises finds that the accused was subjected to a mistrial  because the charge sheet presented was defective and irregular for the  aforesaid reasons and ought not to have formed the basis for his conviction.  The conviction and sentence was irregular.

In view of the time he has spent in prison, this court hereby sets aside the  sentence passed against him and direct that he be set free forthwith unless  otherwise lawfully held.

Dated, signed and delivered at Chuka this 4th day of March, 2018.

R. K. LIMO

JUDGE

4/3/2019

Ruling dated, signed and delivered in presence of Momanyi for Respondent and Applicant in person.

R.K. LIMO

JUDGE

4/3/2019