Republic v Lucy Ndunge [2015] KEHC 2151 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL REVISION NO. 125 OF 2015

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

VERSUS

LUCY NDUNGE..……….…………………….....…….…RESPONDENT

RULING ON REVISION

The Applicant’s request for revision is in letters dated 17th June 2015 and 21st September 2015 by Johnson Shijenje, the Prosecution Counsel at Machakos which were addressed to the Resident Judge of the Machakos High Court. The complainant also wrote a letter dated 6th May 2015 to the Resident Judge of the Machakos High Court raising similar concerns as the Applicant, and sought the Court’s intervention.

The Applicant sought a recall of the file for Mavoko Principal Magistrate Court Criminal Case No. 750 of 2012 – Republic vs Lucy Ndunge for purposes of revision of the orders issued on 3rd February 2013 dismissing the case under section 210 of the Criminal Procedure Code for want of evidence on record. The Applicant stated that the prosecution witnesses including the complainant were never bonded or informed of the hearing date in order to avail themselves to testify, and as such section 210 of the Criminal Code was erroneously invoked. The Applicant’s requests were that the said orders of the subordinate court be revised, and that the file be placed before another magistrate to hear and determine the matter on merit.

The Respondent herein was charged with the offence of assault causing actual bodily harm contrary to section 250 as read with section 251 of the Penal Code. After several adjournment in the trial court, the prosecution on 3rd February 2013  indicated that they had no evidence, and the trial magistrate Hon. T.A. Odera PM ordered that the case was dismissed under section 210 of the Criminal Procedure Code, and that the bail be refunded to the accused.

I have considered the application and request by the Applicant as regards the decision of the trial magistrate, and note that the hands of this Court are tied by the provisions of the law, which provide that the remedy of revision is not available when an accused person has been acquitted. Section 364 of the Criminal Procedure Code provides for the powers of the High Court on revision as follows in this regard:

“(1) 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 sections 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:

Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.

(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.

(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.

(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.”

It is provided categorically in section 364 (1)(b) and (4) that the High Court cannot alter or reverse an order of acquittal using the powers of revision. The Respondent herein has already been acquitted by the trial court and therefore the option of revision is inapplicable and not available in the present application.

The application and requests by the Applicant and complainant are declined for the above reasons, and this order to be furnished to the Applicant without delay.

DATED AT MACHAKOS THIS 30TH DAY OF SEPTEMBER 2015.

P. NYAMWEYA

JUDGE