Kimani v Republic [2023] KEHC 1864 (KLR)

Kimani v Republic (Criminal Revision E336 of 2022) [2023] KEHC 1864 (KLR) (Crim) (27 February 2023) (Ruling)

Neutral citation: [2023] KEHC 1864 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E336 of 2022

DR Kavedza, J

February 27, 2023

Between

Peter Njenga Kimani

Appellant

and

Republic

Respondent

Ruling

1. The applicant was charged, convicted and sentenced to 6 months imprisonment for the offence of being in possession of alcoholic drinks which do not conform to the prescribed standards of distillation contrary to section 27 (1) (b) as read with section 27(4) of the Alcoholic Drinks Control Act No 4 of 2020.

2. The applicant has subsequently sought for the review of the imposed sentence to a non-custodial sentence.

3. Upon receipt of the request for revision of sentence, this court directed that a sentence review report be filed on the convict for consideration by the court.

4. The Probation Officer Mr Ibrahim Mire did file his report in court. The report shows that the applicant is aged 36 years. He is currently serving sentence at Kamiti Medium Prison and he recommends a community service order. That he is the only bread winner to his young family with a housewife and young children who solely depend on him.

Analysis of Law 5. The provisions of section 362 as read with section 364 of the Criminal Procedure Code are clear that revision jurisdiction is by no means an appeal by the aggrieved party to the High Court in criminal cases where such orders are being sought under section 364. On revision the court should steer clear from trespassing into the realm of appellate jurisdiction.

6. The issue herein is whether the circumstances of the matter justify a revision by a superior court from subordinate court. On this issue I draw guidance as elucidated in the case in the case of Republic vs James Kiarie Mutungei [2017] eKLR, Nyakundi J held thus:“The rationale of the High Court as a revisionary authority can be initiated by an aggrieved party, or suo moto made by the court itself, call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, or propriety, correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high court to rehear the case and evaluate the evidence in totality by the lower court to come with a decision on the merits...”.

7. The sentence for contravening section 27(1)(b) of the Alcoholic Drinks Control Act is a fine not exceeding two million shillings or imprisonment for a term not exceeding five years, or both. The applicant was sentenced to pay a fine of Kes 30,000 or serve an imprisonment term of six (6) months which was within the law. It has not been demonstrated that the trial magistrate committed any illegality, impropriety or mistake in sentencing the applicant.

8. I am nonetheless alive to The Sentencing Policy Guidelines page 21 which provides: -“Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for a case in which the objectives of sentencing cannot be met through a non-custodial sentence. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence which is geared towards steering the offender from crime. In particular, imprisonment of petty offenders should be avoided as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short sentences are disruptive and contribute to re-offending.”

9. I also take notice of the probation report by Mr Ibrahim and his recommendation that the inmate is suitable for a non-custodial sentence. I therefore find this application merited and hereby allow it. I also note that the applicant has already served two (2) months imprisonment.

10. In the circumstances, I invoke the provisions of section 3 of the Community Service Orders Act No 18 of 2018 and set aside the sentence imposed by the trial court and substitute the remainder of the prison term with an order that the applicant Peter Njenga Kimani shall serve unpaid community service at Mutuini Primary School under the supervision of Milimani Probation office.

11. Orders accordingly.

RULING READ, DELIVERED AND SIGNED THIS 27TH DAY OF FEBRUARY 2023. ...................................D. KAVEDZAJUDGE