Rotich v Republic [2024] KEHC 2944 (KLR)

Rotich v Republic (Criminal Revision E018 of 2024) [2024] KEHC 2944 (KLR) (14 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2944 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Revision E018 of 2024

JK Sergon, J

March 14, 2024

Between

Mike Rotich

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with the offence of selling alcoholic drinks without license contrary to section 27 (1) (b) as read with section 62 of the Alcoholic Drinks Control Act, No 4 of 2010. The applicant was convicted on his own plea of guilt and on 25th January, 2024 sentenced to six (6) months imprisonment by Hon. Japheth Bii (SRM) in Kericho Criminal Case No E199 of 2024 Republic v Mike Rotich.

2. The applicant has moved this court pursuant to the provisions of Sections 362, 364 and 367 of the Criminal Procedure Code CAP 75 Laws of Kenya urging this court to quash and set aside the order on sentence and give him a reduced sentence. The Applicant stated that the sentence meted out was harsh and excessive. The Applicant further stated that he has a young family that fully depends on him.

3. I have considered section 348 of the Criminal Procedure Code which provides that; “No Appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the extent or legality of the sentence.” It is clear from the above quoted excerpt that the Applicant has a right of Appeal as against the sentence. The Applicant opted to file this Revision instead of challenging the Order on sentence by way of an Appeal. The Law does not pursuit a party who is entitled to challenge the order on conviction or sentence on Appeal to personally approach the Court for revision. It would appear from the provision of Sections 362 and 364 of the Criminal Procedure Code that the Court may act suo moto and may be prompted by another person or body other than the convict to exercise its power of revision. Section 364(5) of the Criminal Procedure Code provides that; “When an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the instant of the party who could have appealed.”

4. In the case Martin Mavuti Kituyi v Republic HCCR. Revision No 27 of 2013 the court rendered itself as follows; “… the very nature of revision as a discretionary remedy explains the policy underpinnings of Section 364(5) of the Criminal Procedure Code; that revision should not be a substitute for an appeal whatsoever or insisted upon by a party who has not filed an Appeal where one was provided for. Revision primarily serves to put right instances where a finding, sentence, order or proceedings of a lower court are tainted by incorrectness, impropriety, illegality or irregularity…’’

5. Having personally approached this court to prompt this court to exercise its supervisory power of revision, the applicant breached the Provisions of Section 364 (5) of the Criminal Procedure Code. I find the revision to be incompetently before this court. The same cannot be entertained by this court. I hereby issue an order striking out the revision.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF MARCH, 2024………………………J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiApplicant – Present in Person