NEPAD AMUNABI v REPUBLIC [2011] KEHC 549 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT KITALE.

CRIMINAL REVISION NO. 51 OF 2011.

NEPAD AMUNABI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT.

VERSUS

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

R U L I N G.

The applicant seeks to have his sentence reviewed” and gave the following reasons;

·That he  did not plead guilty at trial.

·He is the sole bread winner of a family of nine.

·His parents died some years ago.He is married man and blessed with one child

·His family is staying in a rental house and a custodial sentence will make them suffer.

·He is sickly suffering from Asthma.He is remorseful and promise to be a law abiding citizen

The applicant has filed both an application to review his sentence on the basis that his family is suffering. The same is assigned no 51 of 2011.

Revision is ideally supposed to be brought under section 362 of the court. It is when there is. There is no error that is apparent on record.

The prison decongestion process is initiated by the probation department under the community service order regime.

The proceedings in this matter have already been typed and what to be done is for the records to be prepared and an appeal be set down for hearing at the next session.

There are certain distinctive features about revision.

(i) The High Court has complete discretion in revision (i.e. it is not bound to revise) because the revisionary power is discretionary.

(ii)In exercise of these powers no party or person is entitled, as of right, to appear before the High Court but the court may invite a party to be present at the hearing.

(iii)There is no time limit between which an order may be revised, unlike appeals which have to be brought within a specified period.

(iv)In revising orders, the High Court may act on its own motion (i.e. without being moved by either party to the matter)

(v)Both the appellate and revisionary powers of the High Court are aimed at correcting errors of subordinate courts. The basic difference between the two modes lies in the methods of bringing the matter complained of before the High Court.

Under section 382 of the C.P.C. revision only lies when 382. Subject to the Provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any injury or other proceedings under this code, unless the error, omission or irregularity has accessioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the Court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

This application is misplaced and the same is disallowed.

READ, DATED & SIGNED IN THE OPEN COURT THIS 24THDAY OF NOVEMBER 2011

S.M. MUKETI

JUDGE