Njeri v Republic (Criminal Revision 102 of 2022)  KEHC 2369 (KLR) (23 March 2023) (Ruling)
Neutral citation:  KEHC 2369 (KLR)
Republic of Kenya
Criminal Revision 102 of 2022
CM Kariuki, J
March 23, 2023
Faith Wambui Njeri
1.This application dated December 9, 2022 was brought under Article 22,23,25,50,159 (2) and 165 of the Constitution, Section 362 of the Criminal Procedure Code and all other enabling provisions of the law seeking revision of the sentence given on September 9, 2021 in Nyahururu CM’s Court E1630/2020 R vs Faith Wambui Njeri.
2.The Applicant was convicted of child neglect on her own plea of guilty by the trial court in Nyahururu CMC CR Case E1630/2022 R vs. Faith Wambui Njeri.
3.The Applicant, seeks for the following orders:-i.Spent.ii.Spentiii.That the court be pleased to review and set aside the conviction and sentence of the Applicant because the plea was unequivocal, mitigations, probation officers report and the best interest of the daughter of tender 8 years were overlooked.iv.That the cost be in the cause.
4.The grounds for revision were detailed as follows:-
5.That the Applicant is a first offender with no previous criminal records. She is a single mother of an only child of tender years that is 8 years who was a Grade 2 kid at xxxx School.
6.That the Applicant herself is an orphan with no father or mother and is a single mother to the said child.
7.That the probation officer’s report as ordered may not have been used to sentence her.
8.That there was another children officer’s report from Ol Kalou Children Office that she was not supplied with and she is not aware or does not recall being interviews prior to such report that was brought to court which the trial court read silently and without asking any question or reading it to the Applicant or asking her mitigations simply handed out a 1 year sentence of imprisonment in custody without an option of a fine or a non-custodial sentence.
9.That her mitigations were not considered in sentencing by the trial court and they were ignored to her own detriment and that of the child of tender years.
10.That the court while sentencing her may have overlooked the fact that the child’s best interest is the paramount consideration in every decision touching on a child and there had been a miscarriage of justice.
11.That the sentence is vindictive, punitive and disproportionate in the entire circumstance of the case.
12.That during the one-year sentence if the same is not set aside, the child rights and welfare under Article 53 of the Constitution as well as the Children Act No 29 of 2022 will be suspended or waived with enormous consequence.
13.That the court be pleased to set aside the sentence and impose a non-custodial, probationary sentence, a fine, an unconditional discharge or consider the period served as adequate and proceed to set her at liberty not unless otherwise lawfully upheld.
14.That the Applicant may not have been charged or convicted under the new Children Act No. of. 29 of 2022 which came into effect or commencement on July 26, 2022. The said act gives priority to family based alternative care as opposed to institutionalization of children in children homes.
15. Analysis and Determination
16.The issue for determination is whether the Applicants have established a case for revision.
17.The High Court’s power of revision is set out in Article 165 of the Constitution which provides:-(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
18.Further, Section 362 of the Criminal Procedure Code provides that:-
19.Section 364(1) of the Criminal Procedure Code provides:-
20.In the case of Joseph Nduvi Mbuvi vs Republic  eKLR the court discussed the exercise revisionary powers by the High Court in respect of orders of subordinate courts as follows :-
21.Similarly, I am guided by the case of Prosecutor vs Stephen Lesinko  eKLR where Nyakundi J outlined the principles which should guide a court when examining the issues pertaining to Section 362 of the Criminal Procedure Code as follows:-
22.It is important to note that revision is not a substitute for an appeal but is exercised to confirm the correctness or otherwise of orders issued by the sub-ordinate court.
23.Accordingly, I have perused the trial court record, the Applicant herein was charged with neglect of a child contrary to Section 127 (1) (b) of the Children’s Act No 8 of 2001. The particulars of the offence were that on diverse dates between 28th September and 10th October 2022 at Ol’ Kalou within Nyandarua County willfully abandoned a child namely FWW causing her to be a child in need of care and protection.
24.The Applicant was convicted on her own plea of guilty and was later sentenced to (1)one year imprisonment.
25.I have noted that the learned trial magistrate during sentencing stated as follows: -
26.I have had the liberty of going through the probation pre-sentence report dated 3rd November 2011. The child was rescued and taken to a children’s home and the children’ officers interviewed claimed that the offender, the Applicant herein was unfit and that in the best interest of the child, the two should be separated for some time. The report also paints a picture of the child’s continued neglect by the Applicant who was supposed to be her primary protector and care giver. The doctrine of ‘best interest of the child’ cannot be applied subjectively to suit the Applicant’s needs. It is my considered view that the Applicant has not established any circumstance to demonstrate that the best interest of the child was not considered in sentencing her.
27.Consequently, it is my finding all the crucial factors in sentencing the Applicant were considered by the trial magistrate. From the trial court’s proceedings, it is clear that the trial magistrate indeed appreciated the Applicant’s mitigation and the probation pre-sentence report contrary to the Applicant’s assertions. Though the sentence meted seem to legal and proper within the circumstances and the Applicant has already served 6 months and thus the same should be reviewed by this court. As such, I am of the considered view that this matter does qualify for review under Section 362 and 364 of the Criminal Procedure Code.
28.The upshot is that I find this application merited and it is hereby allowed and sentence reduced to period served. Appellant shall be released forthwith.
DATED, SIGNED, AND DELIVERED AT NYAHURURU ON THIS 23RD DAY OF MARCH 2023....................................CHARLES KARIUKIJUDGE