In re Erick Ochieng Abuka [2015] KEHC 8505 (KLR)

IN THE HIGH COURT AT HOMA BAY

CRIMINAL REVISION NO. 66 OF 2015

IN THE MATTER OF

HOMA BAY CHIEF MAGISTRATES COURT

CRIMINAL CASE NO. 1245 OF 2013

AND IN THE MATTER OF

ERICK OCHIENG ABUKA

RULING ON REVISION

1. This matter was brought to my attention by the Chief Magistrate, Homa Bay under section 363 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) to examine the record of proceedings before the subordinate court and satisfy myself of the legality and propriety of the findings and orders made therein.

2. ERICK OCHIENG ABUKA was charged with the offence of house breaking and stealing contrary to section 204(b) of the Penal Code (Chapter 63 of the Laws of Kenya). He pleaded guilty, was convicted and sentenced to 2 years’ probation.

3. When the matter was brought before the Chief Magistrate on 25th August 2015, she noted that the accused had been arrested for violating the terms of the probation and warrants of arrest issued, executed and the accused committed to prison yet the record did not show that the court had issued orders for his committal.

4. I have reviewed the proceedings and the record does not show that the accused was summoned to attend court to answer allegations that he had violated the probation terms nor given an opportunity to challenge the allegations against him.  There is also no order of committal to prison in the file hence such an order must have been made in error.

5. I therefore order that the ERICK OCHIENG ABUKA be released forthwith from Homa Bay GK Prison to complete the probation period as per the sentence imposed on 8th November 2013.

6. The probation officer is at liberty to move the court in the event the accused has violated the terms of probation.

DATED and DELIVERED atHOMA BAYthis 26th day of August  2015.

D. S. MAJANJA

JUDGE