Kangethe v Republic (Criminal Revision E124 of 2022)  KEHC 15872 (KLR) (17 November 2022) (Ruling)
Neutral citation:  KEHC 15872 (KLR)
Republic of Kenya
Criminal Revision E124 of 2022
GL Nzioka, J
November 17, 2022
James Mbugua Kangethe
1.The applicant was arraigned before the Chief Magistrate’s Court at Naivasha charged vide Criminal Case No E676 of 2022, with the offence of; threatening to kill contrary to; section 223 (1) of the Penal Code. The particulars of the charge are as per the charge sheet.
2.He pleaded guilty and was convicted on his own plea of guilty and was sentenced three (3) years imprisonment. However, he seeks for sentence review based on the notice of motion application filed in court on; August 25, 2022, in which he prays that, the custodial sentence in question, be reduced and/or converted to a non-custodial sentence.
3.He relies on the memorandum of sentence review in which he states in the mitigating grounds as follows;-
4.The respondent did not file any response to the application despite being accorded an opportunity to do so. However, having considered the application, I note that, it was filed as revision application. The law that, governss revisionary power of the High court is provided for under; sections 362 of the Criminal Procedure Code which states as follows:
5.The aforesaid provisions are supported by the provisions of; section 364 of the Criminal Procedure Code which states that: -
6.It is clear from the above provisions that, the court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. The objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be involved where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
7.In the instant matter, the applicant was convicted of an offence under section 223 (1) of the Penal Code, which states as follows:-
8.Pursuant to the aforesaid, the sentence meted in the present case of an imprisonment term of three (3) years is lawful, legal, proper and correct and therefore does not fall under the purview of revisionary power of the court and to that extent, the application fails.
9.It is so ordered
DATED, DELIVERED VIRTUALLY, AND SIGNED ON THIS 17TH DAY OF NOVEMBER, 2022GRACE L NZIOKAJUDGEIn the presence of;Applicant in personMs Maingi for the respondentMs Ogutu court assistant