Peter Mukundi v Republic [2020] KEHC 64 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL REVISION NO. 110 OF 2020

PETER MUKUNDI.........................................................................................PETITIONER

VERSUS

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

RULING

1. The applicant herein has moved this court for revision of sentence. He was arrested and charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006 in Criminal Case No. 11 of 2006, at the Chief Magistrate’s Court at Embu. He was convicted and sentenced to serve ten (10) years imprisonment on the 23rd day of February, 2018.

2. In his application, he has relied on the grounds that being a first offender, he is entitled and qualified to all the benefits of law as enshrined in Article 27(1)(2), 50(2)(p) and 51(1) of the Constitution; that he is entitled and qualified to the least severe punishment as prescribed by the law; that the court be pleased to apply Section 216 of the Criminal Procedure Code in order to inform itself as to the sentence or order to impose and/or make and that during the commission of the offence, the applicant was not mature enough unlike today when he is aware of all the consequences of crime.

3. In his submissions, he stated that, at the time he committed the offence, both the complainant and himself were almost age mates and the applicant was totally deceived by the victim’s physical appearance and he believed that she was an adult. That he regrets having committed the offence.

4. It was his further submission that both his family and that of the victim have since reconciled.

5. The respondent opposed the application vide a replying affidavit sworn by Leah Mati a Senior Prosecution Counsel on the 7th day of October, 2020. She avers that the applicant has not set out the grounds of revision as required by the law and that this matter does not fall under the legitimate requirements for revision.

6. It was further deposed that the trial magistrate was within the law in convicting the applicant and sentencing him in accordance with the law without referring the matter for alternative dispute resolution as proposed by the applicant. The deponent who is the counsel for the respondent, contended that the application is misconceived as the contents of the supporting affidavit should have been relayed to the trial magistrate as mitigating factors. She submitted that the offence is serious and the sentence imposed on the applicant is reasonable.

7. The court has considered the application, the supporting affidavit and the submissions of the parties. Before the application proceeded for hearing, the applicant asked the court to consider the victim’s impact report and following his request, the court ordered for a report and the same was availed to the court.

8. The powers of the High Court on revision are provided for under Section 362 of the Criminal Procedure Code which 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 court has noted that upon conviction, the applicant herein did not prefer an appeal against either the sentence or the conviction or both. Section 364(5) of the Criminal Procedure Code provides: -

(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

10. It is therefore clear that where an appeal lies against conviction and/or sentence and a party fails to exercise his right of appeal, such a party is precluded from filing an application for revision of sentence.

11. The court has perused the contents of the victim impact assessment report filed in court on the 28th September 2020, and has noted that the victim is a young adult who is currently taking care of a 3-year-old child on her own. She still harbours a bit of resentment towards the applicant not for the offence but his initial denial to the offence.

12. As rightly submitted by the counsel for the respondent, in the face of the clear provisions of the law as provided for in the criminal procedure code, the report cannot come to the aid of the applicant for the reasons that the grounds he has advanced in the application are not grounds for revision. His remedy lay in appeal and he failed to exercise that right.

13. In the premises, I find that the application is devoid of merits and it is hereby dismissed.

Delivered, dated and signedatEmbu this 9th day of December, 2020.

L. NJUGUNA

JUDGE

...............................................for the Appellant

............................................for the Respondent