Wanjiku v Republic [2023] KEHC 4126 (KLR) | Double Jeopardy | Esheria

Wanjiku v Republic [2023] KEHC 4126 (KLR)

Full Case Text

Wanjiku v Republic (Criminal Revision E066 of 2022) [2023] KEHC 4126 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KEHC 4126 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Revision E066 of 2022

AK Ndung'u, J

April 27, 2023

Between

David Macharia Wanjiku

Applicant

and

Republic

Respondent

Ruling

1. The Applicant herein, David Macharia Wanjiku, is the Accused in Nanyuki CM Criminal Case No 794 of 2019 where he is facing a charge of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. He had pleaded guilty to count II of handling stolen property contrary to section 322(1) as read with section 322(2) of the Penal Code and he was sentenced to three (3) years imprisonment, a sentence that he has already served.

2. Vide a letter dated 23/07/2021, the Applicant’s counsel invoked revisionary power of this court as provided under section 362 and section 364 of the Criminal Procedure Code in order for this court to satisfy itself on the correctness and legality of the proceedings before the trial court. The revision is sought on the following grounds;i.That the trial court erred in convicting the accused on an alternative charge and then proceeded to hear the main charge hence exposing the accused person to double jeopardy.ii.The learned magistrate erred in allowing an amendment of an alternative charge to a main charge while the law expressly provides that the charge should be made in alternative.iii.That this Honourable court do direct that count 2 was an alternative count and accused having been convicted and sentenced of the same, he cannot be again convicted of the main charge.

3. The application is opposed by the Respondent who filed grounds of opposition dated 22/02/2023. The Respondent deponed that the application lacks merit since the revisionary power can only be invoked where there is prove of illegality in the proceedings. That there was no illegality in the proceedings for reasons that the accused did not object to the amendment of the charge sheet, the prosecution had not closed its case when the charge sheet was being amended, the court was not functus officio when the charge was being amended, the accused was called upon to plead to amended charge and that the amendment was done within the strictures of section 214 of the Criminal Procedure Code.

4. The Respondent further deponed that section 135 of the Criminal Procedure Code allows the prosecution to charge more than one count in the same charge sheet. That the ingredients and the penalty for the two counts are different. That at the time of conviction, the count of handling stolen property was a substantive count on itself and not an alternative count. That both counts bear different complainants and that the proceedings in respect to count 1 have been conducted in accordance with the law. The counsel further deponed that section 364 of the Criminal Procedure Code as cited by the applicant does not apply as there is no order for conviction or a finding for a case to answer in count 1.

5. Counsel further deponed that ground one of the Applicant’s application is misconceived since the accused was convicted on a main charge and not an alternative charge. That ground 2 suggests that count 2 ought to be in the alternative yet there is no law that enjoins the state to charge the offence of handling stolen property as an alternative charge and that the court has no jurisdiction to order the framing of charge sheet as proposed by the Applicant on ground 3 hence the application is devoid of merit.

6. The application was canvassed by way of oral submissions. The Applicant’s counsel submitted that the Applicant was charged with robbery with violence as count one and in the alternative, handling stolen property. The accused pleaded not guilty to the robbery count and guilty to the alternative count. The charge was thereafter amended making the alternative count as a substantive count on its own. The Applicant pleaded afresh and pleaded not guilty to count 1 and guilty to count 2. Counsel submitted that both counts had different complainants but the exhibits were the same for both counts. The counsel relied on the case of Gerevasio Mugo Kinyua v Republic (2015) eKLR. Counsel further submitted that the complainant in count 1 was an employee of the complainant in count 2 and he was killed while he was herding cattle belonging to complainant in count 2. It is submitted that count 2 ought to have been in the alternative.

7. The Respondent’s counsel on the other hand submitted that the charge sheet complied with section 137 and 214 of the Criminal Procedure Code. The counsel submitted that section 135 of the Code allows charging of more than one count in one charge sheet. That the case quoted by the Applicant’s counsel is different in that the complainants were the same in that case. In the instant case, the complainants were different, Joseph Murega in count 1 and Mohamed Bashir in count 2 and the complainant in count 1 is yet to receive justice. The counsel further submitted that the rules of double jeopardy do not apply since two separate offences were preferred and that there is no law that states that the offence of handling stolen property should be charged in the alternative.

8. In response to the Respondent’s counsel submissions, the Applicant’s counsel submitted that the Respondent wish to punish the Applicant for the offence in count 1 where the facts of the case are that the complainant in count 1 was an employee of the complainant in count 2. She further submitted that there is no law that provides that handling stolen property should be charged as a substantive count and that the exhibits were the same.

9. This file has been placed before this court for revision in exercise of powers conferred on this Court by section 362 of the Criminal Procedure Code which provides thus: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purposes 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.”

10. From the foregoing submissions by the parties, the issue for determination is whether the continuation of hearing of the matter in count 1 exposes the Applicant to double jeopardy and whether count 2 ought to have been charged in the alternative.

11. The applicant’s contention is that the learned trial magistrate erred convicting the Applicant on count 2 and then proceeded to hear the main charge which is count 1.

12. What the Applicant’s counsel is telling this court is that since the Applicant pleaded guilty to the count of handling stolen property and was sentenced, the trial court is barred from proceeding with the robbery charges as this will expose him to double jeopardy. The reasoning is that the exhibits are the same in both charges since the deceased in count 1 was killed in the course of robbery where cattle belonging to the complainant in count 2 were stolen. That the complainant in count 1 was an employee of the complainant in count 2. The Applicant’s counsel further contends that count 2 of handling stolen property ought to have been an alternative count.

13. The Double Jeopardy rule protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

14. On the issue raised by the Applicant’s counsel, I make reference to the case of Jenkins v District Court 849 P.2d 1055 [1993] (Supreme Court of Nevada), in which, though persuasive, the court held;“Petitioner contends that the district court's order refusing to dismiss the remaining charges against him violates his constitutional protection against being prosecuted a second time for the same offense after conviction. See Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 [1990]. Petitioner is wrong. The Double Jeopardy Clause protects persons against being subject to a subsequent prosecution for the same offense. Id. at 516, 110 S. Ct. at 2090. Petitioner has not been prosecuted twice for the same offense; he has been charged with multiple offenses in a single prosecution. Resolving only part of the charges lodged against a defendant and proceeding to trial on the remaining charges does not implicate the Double Jeopardy Clause. Ohio v. Johnson, 467 U.S. 493, 501, 104 S. Ct. 2536, 2542, 81 L. Ed. 2d 425 [1984]; see also NRS 173. 125. ... Petitioner has no basis for challenging the district court's refusal to dismiss the remaining charges against him, especially given the fact he entered his plea knowingly and voluntarily. Before accepting his plea, the district court thoroughly canvassed petitioner and warned him the court would proceed to trial on the remaining charges. Even if petitioner had not entered his plea knowingly and voluntarily, he could not raise that issue in this petition, because he has adequate remedies in the ordinary course of the law."

15. In Ohio v Johnson, 467 U.S. 493 [1984]the court held;“Respondent Kenneth Johnson was indicted by an Ohio grand jury for four offenses, ranging from murder to grand theft, as a result of the killing of Thomas Hill and the theft of property from Hill's apartment. Respondent offered to plead guilty to charges of involuntary manslaughter and grand theft, but pleaded not guilty to charges of murder and aggravated robbery. Over the State's objection, the trial court accepted the "guilty" pleas to the lesser offenses, and then granted respondent's motion to dismiss the two most serious charges on the ground that, because of his guilty pleas, further prosecution on the more serious offenses was barred by the double jeopardy prohibitions of the Fifth and Fourteenth Amendments. This judgment was affirmed on appeal through the Ohio state courts, and we granted certiorari. 465 U.S. 1004 [1984]. We now reverse the judgment of the Supreme Court of Ohio and hold that prosecuting respondent on the two more serious charges would not constitute the type of "multiple prosecution" prohibited by the Double Jeopardy Clause...Notwithstanding the trial court's acceptance of respondent's guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges. Pp. 467 U. S. 500-502. On the other hand, ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws. Arizona v. Washington, 434 U. S. 497, 434 U. S. 509 (1978). For the foregoing reasons we hold that the Double Jeopardy Clause does not prohibit the State from continuing its prosecution of respondent on the charges of murder and aggravated robbery. Accordingly, the judgment of the Ohio Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.”

16. What can be deduced from the above is that pleading guilty to one count does not bar further prosecutions of the remaining counts and does not expose the accused person to double jeopardy. I must add, however, that the nature of the charges would determine the appropriateness or lack thereof of the prosecution of other counts where a plea of guilty is entered in one of the counts. It is up to the prosecution to ensure that the charges drawn are appropriate and independent of each other for successful prosecution of several counts in the same charge sheet. For instance, if one was to be charged with assault causing actual bodily harm with a 2nd count of grievous harm against the same person, a plea of guilty on one count and a continued prosecution on the other, would obviously expose the accused to double jeopardy.

17. The question arises then as to whether, within the facts of this case, the Applicant was exposed to double jeopardy following the proceedings of 9th August 2018. Counsel for the Applicant submits that the charge in count 2 of handling stolen property ought to have been in the alternative and not a substantive count on its own since the exhibits in both counts are the same and since the complainant in count 1 was an employee of the complainant in count 2. He relied on the case of Gerevasio Mugo v R [2015] eKLR where the court held that;“In the charge of robbery with violence, the appellant was charged with robbing the complainant of the same items. It is our considered opinion that the prosecution should have charged the appellant with the offence of robbery being the main charge. The charge of handling stolen goods ought to have been brought in as an alternative charge. Instead the prosecution charged the appellant with the two offences numbered as count 1 and 2. It is not possible for an accused person to commit the offence of robbery with violence regarding the same complainant and involving the same exhibits as well as handle stolen goods being the same exhibits in the robbery charge.”

18. It is however noteworthy that in the above case, the complainant was the same person in both counts. In our instant case, the complainants are two. In count 1, the particulars were that the Applicant robbed Joseph Murega and in course of robbery killed the said Joseph. The particulars further reveal that the Applicant robbed the deceased sheep belonging to Mohamed Bashir, the complainant in count 2. The particulars in count 2 on the other hand were that he handled stolen property belonging to Mohamed Bashir.

19. Section 135 of the Criminal Procedure Code states that;135. Joinder of counts in a charge or information(1)Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.(2)Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.(3)Where, before trial, or at any stage of a trial, the court is of the opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information, the court may order a separate trial of any count or counts of that charge or information.

20. The above section is to the effect that offences founded on the same facts are to be charged in the same charge sheet.

21. The Criminal Procedure Code does not define what is an alternative count. The Penal Code as well does not provide for the offences that ought to be charged in the alternative. The Oxford English Dictionary defines word alternative as“(of one or more things) available as another possibility or choice"The offence of handling stolen property under section 322 of the Penal Code is normally charged in the alternative of a main charge. The wording of the section connotes that the offence is an alternative to the main charge of either robbery or stealing in which the subject property is lost. The section provides;1. A person handles stolen good if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.2. A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years.

22. Applying the definition of Alternative above quoted, the literal meaning deciphered from this section is that the offence of handling stolen property is“available as another possibility or choice",that is to say, it is either the accused person stole or handled stolen property and he cannot be convicted of doing both.

23. However, the law does not state that this offence should be charged in the alternative or the offence cannot stand on its own as was submitted by the Applicant’s counsel.

24. In our instant case, the Applicant was charged with a count of robbery with violence the particulars of which were that jointly with others not before the court while armed with dangerous weapons robbed Joseph Murega of 79 flock of sheep valued at Ksh.474,000 the property of Mohamed Bashir and during the time of such robbery caused fatal injuries to the said Joseph Murega. The second count was of Handling stolen property the particulars of which are that on the 13th day of June 2019 at Honi area otherwise than in the cause of stealing, dishonestly retained 70 flock of sheep valued at Ksh.420,000 the property of Mohamed Bashir Said knowing or having reason to believe them to be stolen property.

25. I have deliberately set out the particulars of the charge to bring to the fore one salient point; that the items said to have been stolen in the robbery are the same items recovered from the Applicant. This state of facts is important and has a monumental bearing on the course and propriety of the proceedings before the trial court in the following sense.

26. As explained earlier, there is nothing untoward with having an accused person facing multiple charges (counts) in one charge sheet when all relate to the same transaction. Secondly, and in agreement with counsel for the Respondent, there is no law that requires that the charge of handling stolen property be an alternative charge. If the evidence in the hands of an investigator supports a charge of handling stolen property and nothing more, I see no legal bar to a charge of handling stolen property being framed as a stand alone charge.

27. Following in the footprints of the decision in Gerevasio Mugo v R (2015) eKLR where the court held that it is not possible for an accused person to commit the offence of robbery with violence regarding the same complainant and involving the same exhibits as well as handle stolen goods being the same exhibits in the robbery charge, similarly, even where the complainants are stated to be different, it is not possible for an accused person to commit the offence of robbery involving the same exhibits as well as handle stolen goods being the same exhibits in the robbery charge as is the case in this matter. This explains why in practice where the state in its view is in possession of evidence to support the main count, the charge of handling is framed as an alternative charge should the evidence on the main count end up being insufficient. Which leads me to the undoing in the proceedings before the trial magistrate on 9th August 2019.

28. Conventional legal logic would dictate that it is impractical, indeed absurd, that that an accused person can be guilty of handling stolen goods and still yet stand trial for robbery with violence in which robbery the same specific goods are said to have been stolen. In the proceedings before the court on 9th August 2019, the state applied (erroneously in my view since a main count existed) to amend the alternative count to a main count being count 2. The Applicant took plea admitting the charge and was convicted and sentenced to 3 years imprisonment. By requiring that the state proceeded with the prosecution of count 1 (the robbery charge) after convicting the applicant on count 2 (the charge of handling the animals stolen in the robbery), the correctness, legality or propriety of the proceedings comes into question and there is no difficult in concluding that the proceedings before the trial court were legally flawed. Section 362 of the Criminal Procedure Code provides;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 subordinate court.

29. On the face of the record, the trial magistrate failed to consider that the 2 counts could not exist in the same charge sheet as separate counts as a plea of guilt on one rendered the other spent and the gravity of the error is demonstrated by the trial court’s setting a hearing date for count one, a clear indication that the court was oblivious of the fact that this was not legally tenable. The state having elected to take the route of amendment of the charges and a plea of guilt having been achieved on count 2, count one became moot. These matters fall squarely within the ambit of this court’s revision jurisdiction.

30. Flowing from the foregoing, it becomes obvious that the proceedings before court on 9th August 2019 are amenable to revision. It is not lost on me that the Applicant was imprisoned arising from those proceedings. It is a public interest consideration within the meaning of Article 157 (11) of the Constitution that offenders in serious crimes should be suitably prosecuted and punished if found guilty. The mandate to prosecute is bestowed on the Director of Public Prosecutions. He has powers to decide on who to charge for which offence. He cannot work under direction not even from the court on who to charge save where there is discrimination without justification. He must always make the appropriate choices in the interest of the public. In the instant matter, he chose to amend the charges making an alternative count a main count to which the Applicant pleaded guilty. The plea and conviction of the Applicant renders the continuation of prosecution in respect of count 1 irregular in that it exposes the Applicant to double jeopardy. The continuation of the prosecution would prejudice the Applicant.

31. Local jurisprudence on the subject is scanty and for good reason. The prosecution has in practice used the alternative charges where there is uncertainty in the evidence supporting the main charge and where the state has accepted a plea of guilty on the alternative charge, the main count is abandoned. Further afield, I find a useful persuasive authority by the High Court in Namibia (Van Niekerk and Muller JJ) in The State and Kaupasaneua Tjipetekera(CR 75/2012) [2012] NAHCMD (11 September 2012) where the court made a cogent explanation of the import of an alternative charge as follows;“(21)Kok (at p 85-86) uses an example to illustrate how the matter of different pleas to alternative charges should be approached. In my view the reasoning is very useful to assist in gaining clarity on the matter (the translation is mine):“Suppose an accused is charged with offence A, alternatively offence B and suppose the accused pleads not guilty to A and guilty to B. If the prosecutor for whatever reason accepts the plea of guilty to B, he thereby limits the lis with the accused to B and whatever happens further, the accused can no longer be convicted of A (cf S v Ngubane .....[1985 (3) SA 677 (A) 683E-F]). If the doubt or uncertainty as meant in section 83 of the Act still exists after the accused has pleaded (usually this will be the case), the prosecutor does not have to accept the plea of guilty, but it does not mean that he thereby indicates that the plea of guilty can be ignored.Section 115 of the Act should then be applied in relation to A. Even if it is accepted that the application of section115 is not peremptory, ..........it is suggested that, to obviate evidentiary problems such as occurred in S v Molele supra and S v Langa supra, section 115 should always be applied in a case such as this where an accused is charged in the alternative. If the accused exercises his right to silence in relation to the main charge to which he pleaded not guilty, no “admissions’ which he later makes during the section 112(1)(b) questioning should be used to prove the main charge. After section 115 has been complied with, section 112(1)(b) is applied in relation to B. If the court is satisfied that the accused is guilty of B, the accused is not at that stage convicted of B, because it may be that the court may later also be satisfied of the accused’s guilt on A and A might be a more serious offence than B or fit in best with the facts ..... After the questioning in terms of section 112(1)(b) in relation to B evidence is presented in relation to A. If A is proved, the accused may be convicted thereof without any further reference to B. If A is not proved or if it is apparent that B fits in best with the facts or is a more serious offence than A, the accused is convicted of B. That the accused need not be convicted of B immediately after questioning in terms of section 112(1)(b), is a necessary consequence of the fact that the accused is charged in the alternative. A conviction after questioning in terms of section 112(1)(b) is in any event not peremptory as appears from the words “may ..... convict the accused on his plea of guilty” in the said section. If the court after questioning of the accused in respect of B enters a plea of not guilty in terms of section 113 of the Act, the proceedings of course continue – subject to the provisions of section 113 – normally as if the accused pleaded guilty to A as well as B from the beginning. It is possible that the uncertainty or doubt which compelled the prosecutor to charge the accused in the alternative is removed after the application of section 115 and section 112(1)(b). The prosecutor can, for example, be sure after questioning that he will not succeed in proving A. Should it also further be apparent that the court is already satisfied that the accused is guilty of B, the prosecutor can decide not to persist with A. Strictly speaking he can however no longer at this stage make his stance known in terms of section 112(1)(b) by accepting the plea of guilty to B, because that section does not provide for a plea acceptance after questioning. The prosecutor should in such a case merely close the State’s case.”

32. In the South African decision in Thembenkosi D Mncube v The State (Case no. A71 of 2017, H.C.S.A Mpulumanga Division, the court sitting on an Appeal stated;It appears therefore that as long as the offence an accused pleads guilty to, is a competent verdict to a charge put against him/her, he/she is within his/her rights to plead guilty to that offence. Du Toit Commentary15 on the Act under section 106 submits that section 106(1)(a) is wide enough to permit a plea of guilty to an alternative charge or a charge in respect of which a competent verdict is permitted by the Act. But if the plea of guilty is a plea to an alternative charge or competent verdict, it is not a plea of guilty to the offence charged and questioning in terms of s 112(1)(b) is not authorised unless the prosecutor accepts the plea to the alternative charge or competent verdict (S v Peter 1996 (2) SACR 212 (C) 217b–c) [My emphasis].18. Where a prosecutor, before any evidence is led, accepts a guilty plea on an alternative charge or competent verdict, the ambit of the lis between the prosecution and the accused is limited in accordance with this plea. 15 See E Du Toit et al, “Commentary on the Criminal Procedure Act,” sec 106 11 The SCA held that a presiding judicial officer who rules that the trial must proceed on the main charge, commits a 'gross irregularity"

33. Counsel for the respondent has argued that the complainant in count 2 already got justice while the transgression against the complainant in count 1 has not been resolved. I appreciate the gravity of count 1 and as stated above the public interest need to have serious crimes prosecuted. That cannot be achieved through abrogation of the constitutionally anchored right of an accused person to a fair trial. Article 50 (a) and (b) of the constitution provides;Fair Hearing2. Every accused person has the right to a fair trial, which includes the right –a.to be presumed innocent until the contrary is proved;b.to be informed of the charge, with sufficient detail to answer it;c.to have adequate time and facilities to prepare a defence;d.to a public trial before a court established under this Constitutione.to have the trial begin and conclude without unreasonable delay;f.to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;g.to choose, and be represented by an advocate, and to be informed of this right promptly;h.to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;i.to remain silent, and not to testify during the proceedings;j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;k.to adduce and challenge evidence;l.to refuse to give self-incriminating evidence;m.to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;n.not to be convicted for an act or omission that at the time it was committed or omitted was not –i.an offence in Kenya; orii.a crime under international law;o.not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;p.to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; andq.if convicted, to appeal to, or apply for review, by, a higher court as prescribed by law.3. If this Article requires information to be given to a person, the information shall be given in language that the person understands.4. Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.5. An accused person –a.charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; andb.has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.6. A person who is convicted of a criminal offence may petition the High Court for a new trial if –a.the person’s appeal, if any has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; andb.new and compelling evidence has become available.7. In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.

34. The right under Article 50(b) requires the Accused to be informed of the charge with sufficient details to answer it. In our case, the Applicant was informed of the charge and in an unequivocal plea admitted handling the stolen sheep but denied the count on robbery. The state accepted that plea of guilt. It would clearly be contrary to the spirit if not the letter of our Constitution, to maintain that the Applicant would be in a position to mount a reasonable defence to the main count of robbery when he is already a convict on handling the same sheep. There is manifest double jeopardy should the Applicant be convicted of the main count herein and such a result would flout legal logic and would carry with it a bucketful of miscarriage of justice. This court must reject the entrenchment of such practice in our criminal justice system. I think there is merit in the complaints raised by the Applicant.

35. Section 364 of the Criminal Procedure Code provides that;(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.

36. From the foregoing, it becomes clear that the trial magistrate acted irregularly by convicting the Applicant on count 2 of the charges which count related to handling the stolen animals and at the same time ordering the hearing of the charges in respect of count 1 which related to robbery with violence of the same animals. The order to continue with the hearing is laced with illegality and it exposed the Applicant to double jeopardy. The remedy available under the revision jurisdiction of this court is a reversal of the order requiring continuation of the trial in respect of count 1. The Applicant having been convicted on the count of handling the stolen animals cannot be convicted again on count 1. I order that the proceedings before the trial court be halted and the Applicant be acquitted in respect of count 1 forthwith.

DATED SIGNED AND DELIVERED AT NANYUKI THIS 27TH DAY OF APRIL 2023A. K. NDUNG’UJUDGE