Kyalo v Republic [2022] KEHC 9887 (KLR)

Kyalo v Republic (Criminal Revision E014 of 2021) [2022] KEHC 9887 (KLR) (Crim) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9887 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E014 of 2021

JM Bwonwong'a, J

July 6, 2022

Between

Brian Musyimi Kyalo

Applicant

and

Republic

Respondent

(Being an application for revision of an order from the judgement of Hon. M.A. Opado, PM, dated 17/01/2020 in the Chief Maistrate’s Court at Makadara in Criminal Case No. 1785 of 2020 Republic v Brian Musyimi Kyal)

Ruling

The case for the applicant 1. The applicant filed an undated Chamber summons in which he sought the following:1. That this court be pleased to exercise its powers of revision on the legality of the sentence of five (5) years imposed by the trial court on 17th December 2020.

2. It is his contention that the provisions of article 50 (2) (p) of the 2010 Constitution of Kenya were not taken into account during sentencing, which provisions entitled him to the least severe sentence.

3. The application is supported by his supporting affidavit dated January 21, 2021. He has deposed to the following major averments. The applicant has deposed that he was charged with the offence of escape from custody contrary to section 123 as read with 38(B) of the Penal Code (Cap 63) Laws of Kenya. Thereafter he was convicted and sentenced on his own plea of guilty and was sentenced to five years imprisonment. He has also deposed that this is illegal for the maximum penalty provided for is two years imprisonment. The applicant avers that during his sentencing, the provisions of article 50 (2) (p) of the Constitution of Kenya were not invoked and the sentence imposed by the court was very harsh and excessive. Furthermore, he has deposed that had the provisions of Article 50 (2) (p) of the Constitution of Kenya been taken into account, a lesser sentence would have been imposed. He has therefore urged this court to exercise its powers of revision under section 364 of the Criminal Procedure Code to revise the sentence.

The submissions of the applicant 4. The applicant did not make any submissions

The respondent’s submissions 5. In response to the application, the respondent’s advocate (Ms. Elizabeth Kibathi) filed written submission dated March 9, 2022. She submitted that revision should not be a substitute for an appeal and the power of revision should only be exercised in exceptional circumstances, where there has been a miscarriage of justice owing to the defect in procedure or a manifest error on a point of law. To support this argument, the respondent cited the case of Robert Kinyua Nyaga v Republic[2020] e-KLR.

6. The respondent further submitted that section 36 of the Penal Code provides for a general punishment for misdemeanors, which is imprisonment for a term not exceeding two years, or with a fine or with both. Furthermore, the offence which the applicant was charged with was a misdemeanor under the provision of section 123 of the Penal Code. She conceded that the five years imprisonment imposed by the trial court is illegal. She therefore urged the Court to revise the sentence.

Issue for Determination 7. I have considered the application of the applicant and his averments and the submissions of the respondent. I find the following to be the issues for determination.

1. Whether the circumstances of the case justify a revision by this court. 8. I have considered the material before me, as well as the submissions of the parties. Section 362 of the Criminal Procedure Code provides as follows:"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.”

9. The powers of the High Court in exercise of the revisionary jurisdiction are provided for under section 364 of the Criminal Procedure Code which provides as following:"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 section 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.2. 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 defence.”

10. The jurisdiction of this court is not in doubt in view of the above provisions. The question to be answered is whether the circumstances of the matter do justify a revision of the order complained of. Where the court finds that the findings, sentence, or order recorded or passed by the subordinate was either not correct, unlawful or improper, the remedy under section 364 is either to reverse the sentence, and where there is a conviction or alter the finding while maintaining the sentence, reduce or increase the sentence as prescribed by section 354 of the Criminal Procedure Code.

11. The applicant was found guilty and convicted of the offence of escaping from lawful custody contrary to section 123 as read with section 38 (b) of the Penal Code. Section 123 of the Penal Code as read with section 36 of the Penal Code provide for a maximum sentence of two (2) years imprisonment or a fine or both.

12. Section 36 of the Penal Code reads:36. "When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.”

13. Furthermore, section 38 (b) of the Penal Code provides for circumstances where the escaped convict is serving another sentence. It provides as follows:"When sentence is passed under this Code on an escaped convict, that sentence(a)-----(b)if of imprisonment, shall run consecutively or concurrently, as the court shall order, with the unexpired portion of the sentence which the convict was undergoing when he escaped.”

14. Therefore, where an accused is charged with an offence for which the penalty provided for generally is a misdemeanor the court cannot sentence him in excess of two (2) years. Since section 123 of the Penal Codedoes not provide for a specific sentence, the court should have imposed a sentence that was not in excess of two years. The applicant having been sentenced to five years means that the sentence was illegal.

15. I find that there is basis for this court to exercise its revisionary powers under section 362 and 364 of the Criminal Procedure Code by setting aside sentence meted out against him.

16. In the premises, I hereby quash the sentence of five years imprisonment and substitute it with a sentence of two (2) years imprisonment which will run concurrently with the unexpired sentence he was serving when he escaped. This sentence will run from the date when he was convicted in respect of the offence of escaping from lawful custody.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 6TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court Assistant.The applicant in personMs Joy for the Republic/respondent