1.Dr. Davy Kiprotich Koech, the Applicant herein, was charged with 3 Counts of corruption offences in Milimani Anti- Corruption Criminal Case No. 22 of 2009 Republic v Dr. David Kiprotich Koech. By a Judgment delivered on 15th September 2021, the trial court convicted and sentenced the Applicant as follows:
2.Aggrieved by the conviction and sentence, the Applicant filed the instant Chamber Summons Application dated 2nd November 2021 supported by an affidavit sworn on even date. The Application is made under the provisions of Articles 2 (5) and (6), 19, 20, 21, 24, 50, 159, 165 (6) and (7) of the Constitution, Section 362 and 361 of the Criminal Procedure Code Cap 75 and seeks the following orders:
3.The Application is made on the grounds stated on the face of it and re-hashed in the supporting affidavit as follows:
4.In his written submissions dated 2nd June 2022, the Applicant submits on two issues: whether the application should be allowed and costs. He contends that the jurisdiction of this court is properly invoked; that the court may under Section 362 of the Criminal Procedure Code call for and examine the record of criminal proceedings before any court for the purpose of satisfying itself on the correctness and legality of any finding, sentence or order passed and as to the regularity of any proceedings of the subordinate court.
5.The Applicant contends that the trial was not conducted in accordance with the Constitution. That to the extent that the Applicant refunded the sum of Kshs. 21,216,136 (consisting of principal and interest) which was the subject of the proceedings sometime in the year 2015, the criminal proceedings should have been withdrawn. Secondly, he contends that the failure to call a witness from the Centre for Disease Control created a gap that was fatal to the proceedings. That the funds were not public funds as they belonged to the said Centre for Disease Control.
6.The Applicant contends that the court erred in law and fact in retroactively applying the Public Finance Management Act 2012, which was not in force at the material time.
7.Lastly, the Applicant submits further that the court erred in failing to state whether the sentences in the 3 counts were concurrent or consecutive. That the offences arose from the same transaction hence the sentences should be concurrent. That the mandatory fine under Section 48 of the Anti-Corruption and Economic Crimes Act was contrary to the principle of restorative justice as the funds were fully refunded. He cited the decision in Peter Mbugua Kabui v Republic  eKLR in support. He urged the court to allow the Application.
The Respondent’s case
8.The Republic through the Director of Public Prosecutions opposed the Application through its grounds of opposition dated 14th February 2022 and written submissions dated 20th June 2022.
9.The Respondent raises 5 grounds of opposition:1)the Orders sought are untenable since the Applicant has not demonstrated any error, illegality or impropriety or reasonable grounds upon which this Honourable Court can revise and/or vary the sentence of the trial court;2)the fact that the Applicant settled the civil aspect of the case vide High Court Civil Suit No. 316 of 2010 is not itself a bar to the criminal proceedings as in the instant case;3)the sentence meted out by the trial court is proper and sound in law;4)the sentence meted by the trial court is not excessive in the circumstances; and5)the application is devoid of merit in law and ought to be dismissed.
10.In it’s written submissions, the Respondent contends that there was no impropriety in the sentencing as Section 48(2) of the Anti-Corruption and Economic Crimes Act provides for a mandatory sentence. That the sentence met the objective of deterring the Applicant from committing similar offences.
11.The Respondent submitted that the contention that the Applicant paid the principal sum and interest was not a bar to criminal proceedings against him. To support this submission reliance was placed on the case of Simon Nyoike Gakuo v Republic  eKLR.
Analysis and determination
12.The gist of this application is that the criminal proceedings and the subsequent conviction and punishment of the applicant was unjust him having refunded all the sums that the State was claiming from him. It is his contention that the trial court overlooked the principle of restitution and for that reason the conviction and sentence ought to be quashed. He also raised the issue that the funds were not public funds as they belonged to the Centre for Disease Control.
13.Section 56B of the Anti-Corruption and Economic Crimes Act, 2003 provides for out of court settlement of corruption-related cases. However, the law envisages a formal undertaking by the Commission not to institute criminal proceedings against a person who has inter alia, refunded all property he acquired through corruption or economic crime and made a disclosure of all his corrupt conduct.
14.The undertaking takes the form of an oath and is prescribed in Form C under Regulation 7 of the Anti-Corruption and Economic Crimes (Amnesty And Restitution) Regulations, 2011. For it to be binding it must be registered in court. In regard to criminal proceedings the relevant section is Section 56B(3) and Regulation 7 and the same state:-Regulation 7 states:-
15.The Applicant was charged on 15th July, 2009. The alleged refund of the subject funds was made sometime in the year 2015, during the trial. There is no evidence of the registration in court of an undertaking, if any, by the Commission under the provisions of Section 53(B) (3) and (4) of the Anti- Corruption and Economic Crimes Act. The evidence of payment referred to by the Applicant are letters by his Advocates, which unfortunately do not meet the mandatory provisions of Section 53(B)(3) of the Anti- Corruption and Economic Crimes Act. There was no formal undertaking by the Commission therefore registered in court capable of being upheld in favour of the Applicant so as to annul the criminal proceedings and the subsequent conviction. Accordingly, the contention that the Applicant’s right to a fair trial was violated lacks merit.
16.As regards the jurisdiction of this court to make orders on revision the same is provided for under Section 362 of the Criminal Procedure Code which states: -
17.While exercising this jurisdiction, the court is barred from dealing with matters which should otherwise be dealt with on appeal. Section 364(3) of the Criminal Procedure Code provides as follows in that respect:
18.In principle this application is challenging the conviction and sentence of the trial court. More particularly, prayer no. 3 of the application seeks an order that this court “be pleased to quash and/or set aside the conviction and sentence of the Applicant by the Subordinate court (Hon. V. N. Wakumile (Mr.) SPM) on 15th September, 2021 in the Milimani Anti- Corruption Criminal Case No.22 Of 2009: Republic -Versus- Dr. Davy Kiprotich Koech”.
19.The Applicant did have an automatic right of appeal against the trial court’s decision which right is also guaranteed under Article 50 (2) (q) of the Constitution which provides:-
20.By virtue of Section 364(3) of the Criminal Procedure Code, reproduced above, having already filed an appeal, the Applicant is precluded from seeking revision orders. He should instead pursue his appeal where the merits of the decision and the sentence shall be canvassed and determined. A revision is concerned with errors, irregularity, procedural impropriety of the proceedings and legality of the decision none of which have been demonstrated in this application.
21.The upshot is that the Application for revision is unmerited and it stands dismissed.