Republic v Harrison Wahome Ndungu & Thimas Mwangi Kinyua [2015] KEHC 2840 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

REVISION NO. 29 OF 2015

REPUBLIC……………………………...................……………………..APPLICANT

VERSUS

HARRISON WAHOME NDUNGU............................……………...1ST RESPONDENT

THIMAS MWANGI KINYUA………….............................………....2ND RESPONDENT

JUDGMENT

The respondents were charged with the offence of stealing contrary to section 275 of the Penal Code. At the conclusion of the prosecution evidence, the learned magistrate held that the prosecution had failed to establish a prima facie case as to put the respondents on their defence; he accordingly acquitted them under section 210 of the Criminal Procedure Code.

The Director of Public Prosecutions was not satisfied with the learned magistrate’s ruling and therefore by a letter dated 15th April, 2015, he asked this Court to revise the subordinate’s court ruling on the following grounds:-

That the Honourable magistrate erred in failing to take into account the evidence given by the prosecution witnesses.

The Honourable trial magistrate erred in holding that that a prima facie case had not been proved against the acceded (sic) person. This has not been supported by the evidence.

That the Honourable trial magistrate erred in holding that that the charge was defective.

That the Honourable trial magistrate erred in holding that the evidence addressed by the prosecution was barely adequate thus proceeding to draw adverse inference on the prosecution side.

That the Honourable trial magistrate erred in holding that it was the prosecution’s duty to call one Gichuki as witness while it was accused persons duty to call him as their witness, under Section 111 of the Evidence Act, Chapter Laws of Kenya, to proof(sic) their allegations.

That the learned Trial Magistrate erred in holding that prosecution witness ought to have described special features of the stolen cable and disregarded the fact that the accused persons were arrested at the scene when stealing it.

My assessment of the record does not reveal, on its face, the deficiencies outlined by the state in the foregoing grounds and in my view it may be difficult to reach a conclusive answer on these issues until the court has had the benefit of hearing both parties. In my humble opinion, despite the wide powers this court enjoys under section 362 of the Criminal Procedure Code in exercise of its revisionary powers, an application for revision is not the appropriate platform from which the court can disturb the decision of the subordinate court where the errors alleged to have been committed by the trial court are not so evident or manifestly clear on the face of the record that it may be necessary to hear both parties before a court can come to definite conclusion. Where such circumstances arise, an appeal rather than an application for revision would be the appropriate forum. I suppose such are the kind of cases that the legislature had in mind section 364 (5) of the Criminal Procedure Code which 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.

I note that the application for review was made on 17th April, 2015 yet the magistrates’ court ruling had been delivered way back in September, 2014. It is not clear why it took the learned prosecutor more than six months to make the application if found any merit in doing so; however, one thing that is clear is that by the time the application for revision was made the Director of Public Prosecutions was well out of time to lodge an appeal against the decision of the learned trial magistrate.

As the foregoing provision would show, an application for revision cannot be an alternative to an appeal which ought to have been filed but was not taken probably because the applicant was caught out by time; in such case an application for revision cannot be entertained as a substitute for the appeal. For this reason I hold that the Director’s application for revision is misconceived and I hereby dismiss it. It is so ordered.

Dated, signed and delivered this 3rd day of July 2015

Ngaah Jairus

JUDGE