Florence Muhindi alias Mama Angosa v Republic [2018] KEHC 7025 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL REVISION NO.68 OF 2018

(From order in Criminal Case No.37 of 2018 in Chief Magistrate's

Courtat Kisumu passed by Hon. B.Omollo (RM)

on 26th April, 2018).

FLORENCE MUHINDI ALIAS MAMA ANGOSA.....APPLICANT

V E R S U S

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

JUDGMENT

1. This revision was brought by way of applicant’s advocate’s letter dated and received on 4th May, 2018. Applicant seeks revision of an order made on 26th April, 2018 directing her to pay to the Euphasia Leah Amondi (hereinafter referred to as the complainant) a sum of Kshs. 10,000/- as compensation.

2. The brief background of this matter is applicant was charged with offensive conduct contrary to section 94(1) of the Penal Code for allegedly using abusive words “a lesbian” and “a prostitute” against the complainant..

3. The court record shows that when the matter came up for hearing on 26th April, 2018, the state informed the court that complainant wished to withdraw the case.

4. Upon complainant stating on oath that she wished to withdrawal the case, the court stated as follows:

“I take into consideration that complainant broke down in court and I must admit that the sentiments of accused caused her emotional anguish. In the circumstances, I direct that the accused pays to the complainant the sum of Kshs. 10,000/- to act as a deterrent to her as the complainant said that the accused is fond of insulting people around her.”

The court then fixed the matter for mention on 4th June, 2018 to confirm settlement.

5. The order of compensation provoked this revisionon the ground that neither the state nor the complainant requested for compensation.

6. Article 165 (7) of the Constitution provides as follows:

“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.”

7. The powers of the High court in revision cases are contained in Section 362 through to 366 of the Criminal Procedure Code (cap.75). Section 362 specifically provides as follows:-

“362. 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”.

8. What the High Court can do under its revision jurisdiction is stated under section 364 of the Criminal Procedure Code Cap 75, which states as follows:-

“364. (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) ……………………………………………………………………………………………………...

(b) in the case of any other order than an order of acquittal, alter or reverse the order.

9. I have perused the record of the Lower court for the purpose of satisfying myself as to the legality, correctness or propriety of the same.

10. What was before the court for determination was withdrawal of complaint under Section 204 of the Criminal Procedure Code and not reconciliation under section 176 of the same Code. Upon the request, the court’s duty upon satisfying itself that there were sufficient grounds to permit withdrawal was to acquit accused.

11. The trial court’s finding that complainant had told the court that the accused is fond of insulting people around heris neither contained in the statement that complainant made during the withdrawal nor anywhere else in the proceedings. This is my view is an extraneous matter that the court ought not to have considered.

12. In view of the foregoing, the order of compensation made on26th April, 2018 is hereby set aside.  This file shall revert back to the trial court for the appropriate order under section 204 of the Criminal Procedure Code. It is so ordered.

DATED AND DELIVERED THIS9thDAY OFMay2018

T.W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant       - Felix/Carolyne

Applicant                  -N/A

For the State            -N/A