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Petroleum Institute of East Africa v Republic & 2 others (Criminal Revision E132 of 2022) [2022] KEHC 12799 (KLR) (5 September 2022) (Ruling)

Petroleum Institute of East Africa v Republic & 2 others (Criminal Revision E132 of 2022) [2022] KEHC 12799 (KLR) (5 September 2022) (Ruling)
Citation
Petroleum Institute of East Africa v Republic & 2 others [2022] KEHC 12799 (KLR)
Media Neutral Citation
[2022] KEHC 12799 (KLR)
Court
High Court
Court station
High Court at Machakos
Outcome
Allowed
Case number
Criminal Revision E132 of 2022
Attorneys
Mr Jamsumba,
Judges
GV Odunga
Judgment date
5 September 2022
Language
English
Type
Judgment
Original source file
Download DOC (3.9 MB)
Collections
Date published
09 September 2022
Case action
Ruling
Court division
Criminal
Filing county
Machakos
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1.The Applicant herein, Petroleum Institute of East Africa, moved this Court by way of a Notice of Motion dated March 2, 2022 seeking the following orders:1.This Application be certified urgent and the same be heard and determined expeditiously.2.That this Honourable Court be pleased to call for and examine the Record, Proceedings, Ruling and Sentence of the Honourable BS Khapoya (PM) Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021, to wit, (1) the charges against the 1st Accused be terminated; and (2) the 2nd Accused be granted a suspended sentence of 6 months for each offence to run concurrently.3.That this Honourable Court be pleased to correct and set aside the Ruling of the Honourable BS Khapoya (PM) Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 that had the effect of terminating the charges against the 2nd Accused person.4.That this Honourable Court be pleased to set aside and revise the Sentence of the Honourable BS Khapoya (PM) Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021.5.That the Applicant be at liberty to apply for such further or other orders and/or directions as this Honourable Court may deem fit and just to grant and that the Honourable Court makes such further or other orders it deems appropriate.6.The costs of this Application be provided for.
2.The Application is expressed to be brought under Article 50 (1), 165 (6) of the Constitution of Kenya, section 362 and 364 of the Criminal Procedure Code, and sections 4, 9, & 19 of the Victims Protection Act, 2014 and Section 120 of the Petroleum Act, 2019 and is grounded on the following:1.The Applicant herein is victim and Complainant of the alleged crimes in Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021.2.The Applicant is an umbrella body comprising of various players in the Energy Sector and holds Special Powers of Attorney from its said members operating in the Liquid Petroleum Gas (LPG) sub-sector for the protection and enforcement of its said members’ property rights with respect to, inter alia, LPG matters.3.The role of the Applicant includes, inter alia, protecting its member’s property rights in the LPG cylinders. This is informed by a fact that property rights in an LPG cylinder remains to be the property of the brand owners.4.The following members being the Registered owners and proprietors of the following branded liquefied petroleum gas cylinders in the Republic of Kenya are members of the Applicant:Member Brandi.Rubis Energy Kenya K – Gasii.Hashi Energy Limited Hashi Gasiii.Total (Kenya) Limited Total Gasiv.Oil Libya Africa Limited Oil Libya Gasv.National Oil Corporation Supa Gasvi.Lake Gas Limited Lake Gasvii.Vivo Energy Kenya Limited Afrigasviii.Galana Oil Kenya Limited Dell Gasix.Proto Energy Limited Pro Gas/Sea Gasx.Tosha Petroleum Tosha Gasxi.Excellent Logistics Limited E – Gasxii.Hass Hass Gasxiii.BOC Kenya Handi Gas5.The Applicant’s members own over twelve (12) million LPG cylinders. Having made such a substantial investment in their branded cylinders, the said members/brand owners have a legitimate business expectation that they will exploit their investment in the business by way of refilling their branded cylinders so as to recoup their investment and make profit in the business.6.In Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021, the Accused persons were found in possession of and dealing with assorted LPG Cylinders, majority of which are owned by the Applicant’s members without the member’s written authority contrary to the Petroleum Act, 2019.7.The 1st Respondent in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 moved the Court on October 15, 2021 to terminate the case against the 2nd Accused on the grounds that she was the spouse to the 1st Accused, the Applicant was not informed of this despite being the complainant and the party likely to be affected by such decision.8.Section 25 (1) of the Office of the Director of Public Prosecutions Act, 2013 provides that the DPP may, with the permission of the Court, discontinue a prosecution commenced by the Director, of any person or authority at any stage before delivery of judgment.9.The 2nd Accused person was a crucial party in the case since she is the registered owner of the Motor Vehicle KCR662R found to be: (1) Trading and dealing with LPG Cylinders of other brand owners for gain without authority from the brand owner; and (2) Transporting LPG without a valid Licence from the Energy and Petroleum Regulatory Authority.10.The Petroleum (Liquefied Petroleum Gas) Regulations, 2019 provides at Regulation 17 (1) & (3) that a person shall not transport more than three filled cylinders by road, except in accordance with the terms and conditions of a valid Licence issued by the Authority and that a person licensed to transport cylinders by road shall not permit any of his/her motor vehicles to load or off-load from or to a cylinder filling facility, wholesaler or retailer that is not licensed. Fifth Schedule of the %202%20of%202019 Regulations impose a fine of not less than Ksh. 10,000,000.00 to anyone convicted for transportation of LPG without a Licence issued by the Authority.11.It is Court’s duty to ensure that justice is not only done but seen to be done, the termination of the case against the 2nd Accused person was not in the interest of justice, the Applicant stands to suffer prejudice since the discharging of the 2nd Accused is likely to embarrass Section 120 (a) and (b) of the Petroleum Act, 2019 providing for forfeiture of the Motor vehicle upon conviction, since the said vehicle is registered in the name of the 2nd Accused whose charges were withdrawn by the DPP under the watch of the Court.12.After amending the Charge Sheet to reflect only the 1st Accused, the 1st Accused pleaded not guilty to all the charges and was released on a cash bail of Ksh. 100,000.00.13.On October 28, 2021, the Court set a hearing date for February 10, 2022, however, one week later, on November 5, 2021, the case was mentioned and the Accused person indicated that he wished to change plea since he intended to travel out of the Country and did not know when he would be back.14.The charges were read to him afresh and a plea of guilt was entered for the Accused person on all the counts. The Court then proceeded to convict the Accused and upon mitigation, sentenced the Accused person to a suspended sentence of six (6) months for each offence, it further directed that the sentence should run concurrently.15.The Applicant was not informed of these developments despite being the complainant.16.Section 99 (m) of the Petroleum Act, 2019 provides that a person who refills, rebrands trades or otherwise deals with LPG cylinders of another brand owner for gain without the said brand owner’s prior written consent commits an offence and shall on conviction, be liable to a fine of not less than Ksh. 10,000,000 or a term of imprisonment of not less than five years or both.17.The %202%20of%202019 Petroleum (Liquefied Petroleum Gas) Regulations, 2019 also in Regulation 14 outlaws the unauthorized refilling of cylinders of a brand owner and it further stipulates that a person found breaching the provision shall be liable to the fine set out in the fifth schedule.18.The fifth schedule proceeds to stipulate that the fine payable shall be not less than Ksh. 10,000,000.0019.Further, section 120 (a) & (b) of the Petroleum Act, Act No 2 of 2019, provides that where a person is convicted of an offence under the Act, in addition to any other penalty imposed, an order shall be made for the forfeiture of any vehicle, aircraft, vessel or equipment used in the commission of the offence.20.The Applicant learnt of the developments in Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 when it’s witness attended Court on February 10, 2022 ready to testify. To the Applicant’s dismay, it was disclosed that the case has since been concluded.21.It is apparent from the foregoing that the Record, Proceedings and Ruling of the Honourable BS Khapoya (PM) in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 to the effect that: (1) the charges against the 1st Accused be terminated; and (2) the 2nd Accused be granted a suspended sentence of 6 months for each offence to run concurrently, is incorrect, illegal, irregular and improper.22.The Applicant’s right to fair hearing of the case in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 has been gravely miscarried.23.It is in the best interest of justice that this Application be heard as a matter of urgency to stop abuse of the Honourable Court’s process.
3.The Application was supported by an affidavit sworn by Clive Cetewayo Mutiso, the Investigations and Enforcement Officer of Petroleum Institute of East Africa (PIEA), the applicant herein, duly authorised to swear the Affidavit on its behalf.
4.In the said affidavit, the deponent reiterated the averments above and added that for some time now, the Applicant has received complaints from its members regarding refilling of their branded LPG cylinders by some unscrupulous operators without their authority who would then sell the branded cylinders to unsuspecting consumers as though they were filled and sealed by the said members thus occasioning losses. As a result, the Applicant investigated the complaints and found them to be true and the matter was reported to anti-counterfeit and contraband unit of the Directorate of Criminal Investigation of the National Police Service who has the statutory authority and mandate to investigate and enforce criminal laws. Upon conducting their investigations, they found out that one such incidence of illegally refilling of the Applicant members’ cylinders involved the present case against the 1st and 2nd Accused persons in Principal Magistrate’s Court at Kithimani Criminal Case
5.The Accused persons were found in possession of and dealing with assorted LPG Cylinders, majority of which are owned by the Applicant’s members without the member’s written authority contrary to the Petroleum Act, 2019. It was contended that the Accused persons were arrested and arraigned before Court on October 15, 2021 where the 1st Respondent in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 moved the Court to terminate the case against the 2nd Accused on the grounds that she was the spouse to the 1st Accused. However, the Applicant was not informed of this despite being the complainant and the party likely to be affected by such decision.
6.According to the Applicant, Section 25 (1) of the Office of the Director of Public Prosecutions Act, 2013 provides that the DPP may, with the permission of the Court, discontinue a prosecution commenced by the Director, of any person or authority at any stage before delivery of judgment. It was the Applicant’s case that the 2nd Accused person was a crucial party in the case since she is the registered owner of the Motor Vehicle KCR662R found to be: (1) Trading and dealing with LPG Cylinders of other brand owners for gain without authority from the brand owner; and (2) Transporting LPG without a valid Licence from the Energy and Petroleum Regulatory Authority.
7.The Applicant averred that The %202%20of%202019 Petroleum (Liquefied Petroleum Gas) Regulations, 2019 provides at Regulation 17 (1) & (3) that a person shall not transport more than three filled cylinders by road, except in accordance with the terms and conditions of a valid Licence issued by the Authority and that a person licensed to transport cylinders by road shall not permit any of his/her motor vehicles to load or off-load from or to a cylinder filling facility, wholesaler or retailer that is not licensed. Fifth Schedule of the %202%20of%202019 Regulations impose a fine of not less than Ksh. 10,000,000.00 to anyone convicted for transportation of LPG without a Licence issued by the Authority.
8.Based on legal advice, the Applicant contended that it is Court’s duty to ensure that justice is not only done but seen to be done; that the termination of the case against the 2nd Accused person was irregular and not in the interest of justice; and that the Applicant stands to suffer prejudice since the discharging of the 2nd Accused is likely to embarrass Section 120 (a) and (b) of the Petroleum Act, 2019 which provides for forfeiture of the Motor vehicle upon conviction, since the said vehicle is registered in the name of the 2nd Accused whose charges were withdrawn by the DPP under the watch of the Court.
9.The deponent then proceeded to reiterate the circumstances under which the 1st accused changed his plea. And averred that despite being the Complainant, it was not informed of these developments as it was only aware of the hearing date set for February 10, 2022.
10.According to the deponent, based on legal advice, Section 15 of the Criminal Procedure Code provides for suspended sentence where the sentence imposed is not more than two years imprisonment. In this case, however, it is evident that the charges to which the accused in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 pleaded guilty to carried a term of imprisonment of not less than 5 years. The Court was therefore urged to find and hold that that the suspended sentence granted to the accused is incorrect, irregular, improper and not in the interest of justice.
11.Reference was also made to section 120 (a) & (b) of the Petroleum Act, Act No 2 of 2019, which provides that where a person is convicted of an offence under the Act, in addition to any other penalty imposed, an order shall be made for the forfeiture of any vehicle, aircraft, vessel or equipment used in the commission of the offence.
12.According to the deponent, the Applicant learnt of the developments in Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 when he attended Court on February 10, 2022 ready to testify and it was disclosed that the case had since been concluded.
13.It was the deponent’s view that from the foregoing, the Record, Proceedings and Ruling of the Honourable BS Khapoya (PM) in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021, to wit, (1) the charges against the 1st Accused be terminated; and (2) the 2nd Accused be granted a suspended sentence of 6 months for each offence to run concurrently, is incorrect, illegal, irregular and improper. This Court was therefore called upon to exercise its power and call for and examine the Record, Proceedings, Ruling and Sentence of the Honourable BS Khapoya (PM) Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021, to wit, (1) the charges against the 1st Accused be terminated; and (2) the 2nd Accused be granted a suspended sentence of 6 months for each offence to run concurrently.
14.The deponent lamented that the Applicant’s right to fair hearing of the case in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021 has been gravely miscarried since the Accused person, having pleaded guilty to charges directly affecting the Applicant members’ business has been granted an otherwise dismal sentence, surely Justice has not only been denied but it’s not seen to have been done in the Principal Magistrate’s Court at Kithimani Criminal Case Number E969 of 2021.
15.He contended that it is in the best interest of justice that this Application be heard as a matter of urgency to stop abuse of the Court’s process.
16.In response the 1st Respondent relied on the following grounds in opposing the application:1.That the same is frivolous and vexatious, hence an abuse of the court process.2.That it does not meet the legal requisite threshold of the orders that it seeks.3.That the same is inept in that the 2nd Respondent/1st accused was convicted on his own plea of guilty.4.That upon conviction the accused was given an opportunity to mitigate as per the legal requirements.5.That the Court considered the accused’s mitigation and found the same to be merited.6.That more grounds to be adduced at the time of the hearing.
17.It was appreciated on behalf of the Applicant that The Victim Protection Act, 2014 offers a rather limited/narrow definition of who a victim is, by stipulating that a victim is a natural person who suffers injury, loss or damage as a consequence of an offence. The Court was however urged not to adopt a strictly narrow interpretation of the word “natural” in this provision and reference was made to the provisions of Article 22 (1)of the Constitution of Kenya, 2010.
18.Further, it was submitted that Article 50(1) of the Constitution of Kenya, 2010 accords every person a right to have any dispute that can be resolved by the Application of law decided in a fair and public hearing before a Court. In the Applicant’s view, a keen look at these Constitutional provisions would reveal that the People, in Promulgating the Constitution intended that the right to fair hearing and access to justice is accessible to all be it a natural person or a legal person. In this regard reliance was placed on Article 159(2)(a) of the Constitution.
19.According to the Applicant, it is germane to point out that the Constitution of Kenya, 2010 is the supreme law of the land and any law, including the Victim Protection Act, 2014 (which was enacted four (4) years after the Constitution was promulgated) must be construed in line with the spirit of the Constitution.
20.In this case it was submitted that the Applicant herein, is a body corporate constituted of other body corporates, however, behind these body corporates are real human beings (shareholders, employees…etc.), these are the individuals who suffer losses as a result of the crimes committed by the 2nd and 3rd Respondent. The Applicant cited the case of Craft Silicon Limited v Republic; Namai & 5 others (Accused) (Criminal Revision E30 of 2021) [2022] and the Court was urged to find that the Applicant has the locus standi to institute the instant Revision Application.
21.According to the Applicant, the principle of legality is the ideal that requires all law to be clear and ascertainable. It requires decision makers to resolve disputes by applying the legal rules that have been declared beforehand and not to alter the legal situation retrospectively by discretionary departure from established law. It was however submitted that in a rather surprising and interesting turn of events at the Trial Court, the 2nd Respondent changed his earlier plea of “not guilty” to that of “guilty”. Ordinarily, the Trial Court ought to render its Judgment and base its sentencing on the Petroleum Act, 2019 and the Petroleum (Liquefied Petroleum Gas), Regulations, 2019, however, this was not the case. It was explained that the 2nd Respondent pleaded guilty to the following offences under the Petroleum Act, 2019:i.Illegally refilling of Liquefied Petroleum Gas (LPG) Cylinders without authority from brand owners to fill contrary to section 13 (1) and 14 (a) of the LPG Regulations as read with section 99 (1) (m)(ii) of the Petroleum Act, 2019;ii.Trading & Dealing with LPG Cylinders of another license for gain without the licensee’s prior written consent contrary to Section 99(1) (m) and 99 (2) (b) of the Petroleum Act 2019 and Regulation 18 (1) of the Petroleum (LPG) Regulations; andiii.Transporting LPG without a valid license from EPRA contrary to Regulation 4 (1) (2) and 17 (1) (3) of the LPG Rules as read with Section 101 of the Petroleum Act 2019.
22.The 2nd Respondent was then convicted on his own plea of guilty and sentenced to six (6) months suspended sentence for the three counts, which sentences were to run concurrently. According to the Applicant, the above sentence is in utter contradiction with what is provided for in the Petroleum Act, 2019 and the %202%20of%202019 Petroleum (Liquefied Petroleum Gas) Regulations, 2019.
23.It was submitted that for Count 1, of Illegally refilling of Liquefied Petroleum Gas (LPG) Cylinders without authority from brand owners to fill contrary to section 13 (1) and 14 (a) of the LPG Regulations as read with section 99 (1) (m) of the Petroleum Act, 2019A, the Act provides at Section 99 (m) (ii) that upon conviction, a person shall be liable to a fine of not less than Kenya Shillings Ten Million or a term of imprisonment of not less than five years. The 5th Schedule of the %202%20of%202019 Regulations also provides a fine for the offences under Regulation 14 (a) and sets it such sum not less than Kenya Shillings Ten Million. For Count 2, Trading & Dealing with LPG Cylinders of another license for gain without the licensee’s prior written consent contrary to Section 99(1) (m) and 99 (2) (b) of the Petroleum Act 2019 and Regulation 18 (1) of the%202%20of%202019 Petroleum (LPG) Regulations, the Act provides at Section 99 (m) (ii) that upon conviction, a person shall be liable to a fine of not less than Kenya Shillings Ten Million or a term of imprisonment of not less than five years. For Count 3, Transporting LPG without a valid license from EPRA contrary to Regulation 4 (1) (2) and 17 (1) (3) of the LPG Rules as read with Section 101 of the Petroleum Act 2019, the Regulations provide at 5th Schedule that upon conviction, a person shall be liable to a fine of not less than Kenya Shillings Ten Million.
24.It was contended that the Petroleum Act, 2019 and the %202%20of%202019 Petroleum (Liquefied Petroleum Gas) Regulations, 2019 set the mandatory sentence to be issued by a Trial Court in the event of a conviction. Further to this, mandatory sentences are lawful and constitutional and Trial Court ought to be bound by the provisions of Petroleum Act and the Regulations and also paragraph 7.17 of the Sentencing Policy Guidelines which provides that, where the law provides mandatory minimum sentences, then the Court is bound by those provisions and must not impose a sentence lower than what is prescribed.
25.It was further submitted that judicial precedence has also been generous in this issue, for instance in the case of Republic Versus Hamound Rashid Azzan & Another [2017] eKLR Weldon Korir, J set aside a sentence that was imposed by the Trial Court (Kshs 15,000.00 fine or six months imprisonment), and replaced it with a fine of Kshs 30,000.00 or six months imprisonment in default as was provided for in Section 97 of the Wildlife Conservation and Management Act 2013.
26.From the foregoing, it was submitted that it is evident that the Trial Court was wrong in sentencing the 2nd Respondent to a six months’ suspended sentence and that a look at how the penalties in the Petroleum Act and the Regulations are couched will reveal that the drafts man used the words “shall” and “not less than” to express the mandatory nature of such sentences.
27.As such, the Court was urged to set aside the sentences meted upon the 2nd Respondent by the Trial Court and enhance the same to the mandatory terms as provided for in the Petroleum Act, %202%20of%202019 2019 and the %202%20of%202019 Petroleum (Liquefied Petroleum Gas) Regulations, 2019.
28.On the issue whether the withdrawal of charges against the 3rd Respondent was regular, correct and lawful, it was submitted that the 3rd Respondent, was discharged from the proceedings in the Trial Court following an Application by the 1st Respondent on the grounds that the said Respondent was a spouse to the 2nd Respondent. Reference was made to Section 120 (a) of the Petroleum Act, 2019 which provides, where a person is convicted of an offence under the Act, in addition to any other penalty imposed, an order shall be made for the forfeiture of any vehicle, aircraft, vessel or equipment used in the commission of the offence.
29.According to the Applicant, Charges 2 and 3 relate to a Motor Vehicle Registration Number KCR 662R; Make: Toyota Dyna and that a search from the National Transport and Safety Authority’s (NTSA) Motor Vehicle Copy of Records reveals that that the subject motor vehicle is owned by Lucy Wairimu Waithira, the 3rd Respondent herein. It was submitted that since it is trite law that no person should condemned unheard, an Application for forfeiture of the Motor Vehicle may not be successful against the 3rd Respondent as she was discharged from the proceedings giving rise to such Application.
30.It was further contended that the reasons fronted by the 1st Respondent in their Application to discharge the 3rd Respondent are just but ridiculous. According to the Applicant, the 1st Respondent had five reasons for discharging the 3rd Respondent from the proceedings in the Trial Court, and these were that the 3rd Respondent is a Spouse to the 2nd Respondent; that the charge sheet was signed in error; that the 2nd Respondent is the subject of investigations; that the 3rd Respondent does not appear anywhere; and that the 3rd Respondent was in Court to follow up on the husband.
31.According to the Applicant as much as the 1st Respondent has the mandate to approve the charges preferred against a person, such mandate ought to be exercised in good faith and in the interest of justice. To the Applicant, the discharge of the 3rd Respondent was irregular, unlawful and unjust for reasons that the 3rd Respondent was a crucial party in the proceedings since she is the owner of the subject motor vehicle used in commission of the crimes.
32.Further to the foregoing, the Applicant, being a victim of the offences committed by the 2nd and 3rd Respondents was not consulted or even informed of such a drastic move by the 1st Respondent, hence the 1st Respondent did not act in the interest of the Applicant. The Court was urged to allow the application.
33.On the part of the 2nd and 3rd Respondents, a replying affidavit dated March 23, 2022 was filed on March 24, 2022 sworn by Peter Gichure Gathua opposing the said application in which it was averred that the said application is grossly incompetent, fatally defective, an afterthought, misconceived, unmeritorious and gross abuse of court process in that the application was filed without leave of court, 14 days having passed from the date of the sentencing being 5/11/2021. He also contended that the Applicant herein has no locus standi to file the current application, this being a criminal matter it is only the 1st Respondent with prosecutorial powers as per Article 157 of the constitution. He further contended that the trial court has discretion to Grant appropriate legal sentence as per sentence policy guideline.
34.In this case, the said Respondents identified the following legal issues for determination.
1.Whether the applicants’ application meets the threshold of ground of revision to warrant this court to grant orders prayed in the application.
2.Whether the Applicant has locus Standi to bring this application considering it is a criminal matter.
3.Who bears the costs
35.It was submitted that it is trite law that this court can only exercise supervisory jurisdiction over subordinate courts. The enabling law for revision is Article 165(6) and (7) of the Constitution and Section 362 as read together with section 364 of the Criminal Procedure Code. The revisionary jurisdiction of this court is wide in scope but it is strictly limited to the parameters set out in section 362 of the Criminal Procedure Code.
36.It was submitted that section 362 should be read together with section 364 of the Criminal Procedure Code which specifies the orders the court can make, in its discretion, if it is satisfied that there was an illegality, error, irregularity or impropriety in the impugned proceedings, sentence or order issued by the trial court. The provision, it was submitted, empowers the court to exercise any of the powers conferred on it as an appellate court by sections 354, 357 and 358 of the Criminal Procedure Code if what is impugned is a conviction and if it is any other order except an order of acquittal, the court can alter or reverse the order challenged on revision with the aim of aligning it to the applicable law.
37.In the present case, it was submitted that the trial magistrate exercised his discretion correctly when he arrived at the said sentence imposed upon the 2nd Respondent upon considering various facts which included but not limited to the fact that the 2nd Respondent herein on the November 5, 2021 pleaded guilty and he was convicted on his own plea of guilty. Further to that, the trial magistrate also considered the mitigation by the 3rd Respondent who stated that he was a first offender which is as per the sentence policy guidelines. Reference was made to the case of Otieno v Republic [1983] eKLR and Shadrack Kipkoech Kogo v R., Eldoret Criminal Appeal No 253 of 2003.
38.On the issue of allowing the 1st Respondent to terminate the Charges against the 3rd Respondent and on the issue of locus standi, reliance was placed on Article 157(6) of the Constitution. Reference was made to the case of Republic v Faith Wangoi [2015] eKLR.
39.In the present case it was submitted that it was the prosecution counsel who moved court to have the matter against the 3rd Respondent herein withdrawn under section 25(1) of the Office of the Director of Public Prosecutions Act 2013 and therefore the same was properly and legally done. To the said Respondents, having clearly demonstrated above the role of the prosecution in criminal matters which is the case herein, it therefore follows that the Applicant herein has no locus standi to file the current application.
40.As regards the costs, it was submitted that cost follows the event and therefore having demonstrated that applicant’s application is unmerited, this Court should compel the Applicant to pay cost of the application.
Determination
41.I have considered the material before, the submissions as well as the authorities cited and this is the view I form of the matter.
42.Section 362 of the Criminal Procedure Code provides as follows: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 such subordinate court.
43.Section 367 of the Criminal Procedure Code, on the other hand, provides as hereunder:When a case is revised by the High Court it shall certify its decision or order to the court by which the sentence or order so revised was recorded or passed, and the court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith.
44.Section 364 of the Criminal Procedure Code provides as follows:(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.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
45.In this case, it is contended that the Applicant has no locus standi to institute these proceedings and that the only authority that can do so is the Director of Public Prosecution. Reliance for this robust submission has been placed on Article 157(6) of the Constitution which provides thus:-The Director of Public Prosecutions shall exercise state powers of prosecution and may:-(a)Institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence alleged to have been committed.(b)To take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority or to discontinue at any stage before judgment is delivered any such criminal proceeding instituted it undertaken by himself or any other person or authority.”
46.With due respect to the Respondents, nowhere in this provision does the law restrict the revisionary powers to a preserve of the ODPP. To the contrary section 362 of the Criminal Procedure Code bestows upon this Court the power to 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 such subordinate court. It is therefore clear that the revisionary power is a power reposed on the Court in the exercise of the Court’s Constitutional supervisory jurisdiction pursuant to Article 165(6) of the Constitution. It can be exercised upon a trigger by the parties before the Magistrate’s Court or any other person or by the Court itself on own motion. It is telling that section 365 of the Criminal Procedure Code provides that:No party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision:Provided that the court may, when exercising those powers, hear any party either personally or by an advocate, and nothing in this section shall affect section 364 (2).
47.What this provision provides is that in the exercise of its revisionary powers, it is discretionary upon the court to decide whether or not to hear the parties and that it mat exercise those powers suo moto. By moving the Court, the Applicant is simply drawing this Court’s attention to what in its view amounts to irregular or illegal proceedings or order. That course is clearly permissible. Accordingly, I find that the Applicant herein has locust to bring these proceedings.
48.It was alluded to the fact that these proceedings ought to have been commenced within 14 days from the date of sentencing. With due respect these proceedings are not in the nature of appellate proceedings. When the Court is exercising its Constitutional supervisory jurisdiction in the nature of revision, no timelines can be implied unless the same are expressly set out in the Constitution or by an Act of Parliament. Accordingly, I find no substance in the argument that leave was required to bring these proceedings.
49.A strict reading of section 362 of the Criminal Procedure Code, however, does not expressly limit the High Court’s revisional jurisdiction to final adjudication of the proceedings. The section talks of “any criminal proceedings”. “Any criminal proceedings” in my view includes interlocutory proceedings. Suppose a subordinate court would be minded to make an absurd decision of commencing a criminal trial by directing the accused to give evidence before the prosecution, I do not see why the High Court cannot call the proceedings in question to satisfy itself as to the correctness, regularity or legality of such order. In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.
50.However, 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.
51.From the foregoing it is clear that the High Court cannot exercise revisional jurisdiction in an order of acquittal. It may however exercise the said jurisdiction in case of a conviction or in any other order. In this case, two orders are in contest. The first one is the order withdrawing the case against the 2nd accused while the second order is the sentence. Both orders do not amount to acquittal. They are “any other order” and a conviction respectively which in my view can be subject of revisionary powers of this Court.
52.It is, however my view that the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by the High Court of Malaysia in Public Prosecutor v Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case”.
53.On the merits, this application is based on two grounds. The first ground is that the withdrawal of the case against the 2nd accused, the 3rd Respondent herein was irregular as the Applicant herein, who was the complainant ought to have been heard. The Applicant has invoked the provisions of sections 4, 9, & 19 of the Victims Protection Act, 2014.
54.This issue brings to light the role of victims in criminal proceedings. In Joseph Lendrix Waswa v Republic [2019] eKLR, the Court of Appeal sitting in Kisumu expressed itself at paragraphs 20-24 as hereunder:“
[20]…it is clear that the Constitution and the VPA gives a victim of an offence a right to access justice and a right to fair trial which rights, as Article 20(2) provides, should be enjoyed to the greatest extent consistent with the nature of the right. The right to a fair trial as Article 25 provides is an absolute right. The fact that the rights of an accused person to fair trial are enumerated and the rights of victims of offences are recognized by Article 50(9) but to be stipulated in a legislation indicates that the Constitution intends, as a principle, that the constitutional rights of an accused person to a fair trial should be balanced with the statutory rights of the victim of the offence as stipulated in VPA and further that the rights of the victim of crime should be exercised without prejudice to enumerated rights of an accused person to a fair trial.
(21)The concept of “watching brief” in a criminal trial where an advocate for the victim does not play any active role in the trial process is now outdated. The Constitution and the VPA now gives a victim of an offence a right to a fair trial and right to be heard in the trial process to assist the court, and not the prosecutor, in the administration of justice so as to reach a just decision in the case having regard to public interest. That right of the victim to be heard persists throughout the trial process and continues to the appellate process.(22)The constitutional and statutory role of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process. The nature and scope of the victim’s intervention prescribed by the VPA should be interpreted in conformity with the Constitution and implemented by the trial court at the appropriate stages of proceedings as the justice of each case requires. It is the duty of the trial court to conduct a fair trial and to protect and promote the principles of the Constitution (Article 159(2) (e)).The rights granted to victims of offences just like the rights conferred by the Bill of Rights are to be liberally construed. Some rights in the trial process are stipulated in the VPA, such as the right to submit information during plea bargaining, bail hearing and sentencing (section 20, section 12), the right to adduce evidence which has been left out and to give oral evidence or written submissions (section 13).The independent and discretionary power given by the trial court by section 150 of the Criminal Procedure Code is intended to help the court to search for the truth and to function as a court of justice.It is not incompatible with the right of a fair trial of an accused person or with the exercise of the prosecutorial powers of the DPP if a victim of an offence, either in person or through his advocate is allowed to exercise the full power of the court in the manner provided by section 150 of the Criminal Procedure Code so long as the safeguards in the proviso thereto are observed.Accordingly, we find that a victim of an offence or his advocate or representative may exercise the plenitude of the powers of the court under section 150 of the Code with the permission and directions of the trial court.
(24)We have been asked in this appeal to set the full parameters of the extent of the victim’s participation in the trial process. Other than what we have said above, we recognize that the issue of victim’s participation would arise in infinite variety of factual situations where the trial court would be required to offer guidance to ensure a fair trial to an accused person.A rigid prescription would not only limit the exercise of rights and the judicial discretion of the trial court but would also impede the administration of justice and the development of the law. It is preferable that the exercise of the victim’s rights should be determined by the trial court as occasion arises and as the justice of each case requires.”
55.The Supreme Court on its part in Petition No 23 of 2019 - Joseph Lendrix Waswa v Republic [2020] eKLR expressed itself as follows:“The Trial Court being an impartial entity that oversees the progress of a case, has the ultimate function of determining the accused's guilt or innocence. Its aim is to establish the truth. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. Thus, the rights of the accused cannot be considered in isolation without regard to those of the victim. Victims too have a legitimate interest in the Court’s exercise of its jurisdiction. The Criminal Justice system should cultivate a process that inspires the trust of both the victim and the accused. Therefore, we fail to see how the ‘participatory rights of the victim’ violate the ‘fair trial’ rights of the accused. A victim can participate in a trial in person or via a legal representative.”
56.In the case of IP Veronica Gitahi & Another v Republic (2016) eKLR the rights of a victim to participate in trial was discussed as hereunder:“The Act further provides the parameters of the victim’s representative’s participation in the trial. The victim’s views and concerns may be presented in court at any stage of the proceedings as may be determined to be appropriate by the court. Those views and concerns may be presented by the victim himself or herself or by a “legal representative” acting in the victim’s behalf, at the stage of plea-bargaining, bail hearing and sentencing, as far as possible to be heard before any decision affecting him or her is taken; to be accorded legal and social services of his or her own choice, and if the victim is vulnerable, to be given these services at the State’s expense, and to make a victim impact statement at the stage of sentencing. These rights must however not be prejudicial to the rights of the accused person or be inconsistent with a fair and impartial trial. See sections 20 and 21.”
57.A reading of the said authorities leads me to the conclusion that the rights of the victims to participate in the criminal proceedings encompasses their right to be heard before the criminal proceedings are withdrawn either wholly or in part. However, the Court may notwithstanding having afforded them the opportunity to be heard proceed to make any appropriate orders in the circumstances.
58.The question however arises as to who is the victim in criminal cases. Section 2 of the Victims Protection Act however defines “victim” in the following terms:“victim" means any natural person who suffers injury, loss or damage as a consequence of an offence;
59.The Applicant has cited Articles 22 (1) and Article 50 (1) as supporting its case that it has a right to be treated as a victim under the Act. However, those two provisions do not deal with natural persons. Whereas the word “person” is defined in Article 260 of the Constitution, the phrase “natural person” is not defined. It is clear that the word “natural” qualifies the word “person” and therefore the two cannot mean one and the same things. Since the Act was enacted after the promulgation of the Constitution, it must be deemed that the drafters of the Act were very clear in their minds that they were wanted to qualify the word “person” as used in the Constitution and to restrict victims to natural persons.
60.In Alfred Muhadia Ngome & Another v George W. Sitati & 2 Others Civil Application No Nai. 268 of 1999 it was held that:“The duty of the Court in construing a statute is to ascertain and to implement the intention of the Parliament as expressed therein. Where Parliament has used non-technical legislation (sic) words which, in there ordinary meaning cover the situation before the Court, the Court will generally apply them literally provided that no injustice or absurdity results. In such case it is a reasonable presumption that Parliament or its draftsman has envisaged the actual forensic situation.”
61.According to Maxwell on the Interpretation of Statutes, 10th Edition:“The first and most elementary rule of construction is that it is assumed that words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise, in their ordinary meaning; and secondly that the words and phrases are to be construed according to the rules of grammar. It is very desirable in all cases to adhere to the words of an Act of Parliament, giving to them that sense which is their natural import in the order in which they are placed. From these presumptions it is not allowable to depart where the language admits of no other meaning. Nor should there be any departure from them where the language under consideration is susceptible of another meaning, unless adequate grounds are found, either in the history or cause of the enactment or in the context or in the consequences which would result from the literal interpretation for concluding that that interpretation does not give the real intention of the legislature. If there is nothing to modify, nothing to alter, nothing to qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences…The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the court as to what is just or expedient…However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words.”
62.Having considered the foregoing, I hold that the Applicant herein does not fall under the definition of “victim”” as defined under the Victims Protection Act and therefore could not enjoy the rights reserved to the victims under the Act. Accordingly, the failure by the trial court to afford it a hearing before the withdrawal of the case against the 2nd accused, though could be the subject of an appeal, cannot amount to an irregularity or illegality for the purposes of a revision.
63.That now brings me to the issue of the sentence. The principles guiding interference with sentencing have over the time been laid down by the Courts in various matters both in local and other jurisdictions. In S v Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that:“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”
64.Similarly, in Mokela v The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”
65.The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor v Republic, [1954] EACA 270, pronounced itself on this issue as follows:-“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
66.To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”. (R - v- Shershowsky (1912) CCA 28TLR 263) while in the case of Shadrack Kipkoech Kogo - v - R. Eldoret Criminal Appeal No 253 of 2003 the Court of Appeal stated thus:-“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R. (1989 KLR 306)”
67.The Court of Appeal, on its part, in Bernard Kimani Gacheru v Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
68.In Shadrack Kipchoge Kogo v Republic Criminal Appeal No 253 of 2003 the Court of Appeal stated that: -“Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into an account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.”
69.In Bernard Kimani Gacheru v Republic [2002] eKLR the Court of Appeal restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
70.That this Court has the power to interfere, by way of revision, where the sentence is irregular or illegal is not in doubt.
71.According to the Applicant the provisions of the law under which the accused persons were charged removed them from being candidates for suspended sentences since a sentence can only inure to a person facing less than two years sentence. Section 15(1) of the Criminal Procedure Code which prescribes suspended sentences provides as hereunder:Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by the court (hereinafter called the “operational period”) the offender commits another offence, whether that offence is punishable by imprisonment, corporal punishment or by a fine.
72.In my view, what this section means is that before the trial Court decides to suspend the sentence, it must pass the sentence of imprisonment. That provision can only be invoked where the sentence passed is for a term of not more than two years.
73.In this case, section 99(1)(m) of the Petroleum Act under which Count I and Count II were brought provides thata person who refills, rebrands, trades or otherwise deals with liquefied petroleum gas cylinders of another licensee for gain without the said licensee's prior written consent commits an offence and shall on conviction, be liable to a fine of not less than ten million shillings, or a term of imprisonment of not less than five years, or to such fine and imprisonment. For Count III, Transporting LPG without a valid license from EPRA contrary to Regulation 4 (1) (2) and 17 (1) (3) of the LPG Rules as read with Section 101 of the Petroleum Act 2019, the Regulations provide at 5th Schedule that upon conviction, a person shall be liable to a fine of not less than Kenya Shillings Ten Million.
74.The 1st accused, upon change of plea from not guilty to guilty was thereafter convicted in all the three counts and after mitigation, the trial court sentenced to 2nd Respondent to suspended sentence of 6 months which were to run concurrently. In imposing the sentence the Court did not make any reference to the relevant sections of the law which on the face of it did not permit the imposition of suspended sentences. There seem to have been a patent error of law in sentencing the 2nd Respondent herein and as a result, the sentence imposed was irregular.
75.In the premises, I allow this Application, quash the sentence imposed on the 2nd Respondent herein, Peter Gichure Gathua, in Kithimani PM’s Criminal Case No E969 of 2021 and direct that the mater be remitted to the trial court for the purposes of imposing the appropriate sentence.
76.It is so ordered.
JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH SEPTEMBER, 2022.G V ODUNGAJUDGEIn the presence of:Mr Langalanga for the 2nd and 3**rd RespondentsMr Jamsumba for the 1st RespondentCA Susan/Tecla
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Date Case Court Judges Outcome Appeal outcome
5 September 2022 Petroleum Institute of East Africa v Republic & 2 others (Criminal Revision E132 of 2022) [2022] KEHC 12799 (KLR) (5 September 2022) (Ruling) This judgment High Court GV Odunga  
5 November 2021 ↳ CRIMINAL CASE NO. E969 OF 2021 Magistrate's Court BS Khapoya Allowed