Kabwori v Republic (Criminal Revision E111 of 2024) [2025] KEHC 2643 (KLR) (Crim) (6 March 2025) (Ruling)
Neutral citation:
[2025] KEHC 2643 (KLR)
Republic of Kenya
Criminal Revision E111 of 2024
WA Okwany, J
March 6, 2025
Between
Angela Kerubo Kabwori
Applicant
and
Republic
Respondent
(From the original Conviction and Sentence in the Chief Magistrates’ Court at Keroka, MCCR No. E565 of 2024)
Ruling
1.The Appellant was convicted for the following offences: -i.Preparing, Cooking and Selling food under unsanitary conditions contrary to Section 7 as read with Section 36 (1) (a) of the Food Hygiene Regulations under the Food Drugs and Chemical Substances Act Cap.254 Laws of Kenya;ii.Preparing, Cooking and Selling food without a valid medical certificate and contrary to Regulation 15 (1) (b) of the Food Hygiene Regulations under the Food Drugs and Chemical Substances Act Cap.254 Laws of Kenya; andiii.Working in direct contact with food without a clean outer protective garment contrary to the 2nd Schedule, Part B, Regulation 15 (1) (c) of the Food Hygiene Regulations under the Food Drugs and Chemical Substances Act Cap.254 Laws of Kenya.
2.The trial court sentenced her to pay a fine of Kshs. 100,000/= or in default, to serve 12 months’ imprisonment in the first count, to pay a fine of Kshs. 2,000 or in default, to serve 30 days’ imprisonment in the second count and to pay a fine of Kshs. 2,000 or in default, to serve 30 months’ imprisonment in the third count
3.She has now moved this Court through a Notice of Motion seeking a revision of her sentence and consideration for a probation order on the grounds that she was a first offender and is remorseful for her actions. The Application was supported by her affidavit in which she reiterated the grounds listed on the face of the application.
4.The Prosecution Counsel, Mr. Chirchir, did not oppose the Application and submitted that the Court could exercise its powers under Section 362 of the Criminal Procedure Code to revise the sentence.
5.Article 50 of the Constitution provides for the rights of an accused person as follows: -(2)Every accused person has the right to a fair trial, which includes the right-(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law.
6.Article 165 of the Constitution grants the High Court supervisory powers over the subordinate courts as follows: -Article 1651.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 not over a superior court.
7.This Court’s revisionary jurisdiction is encapsulated under the Criminal Procedure Code which outlines the manner in which such powers are to be exercised. The relevant provisions state: -
8.It is therefore the duty of this Court, in an application for sentence review, to call for the records of the subordinate courts and satisfy itself as to the correctness, appropriateness and legality of those decisions.
9.I am minded that sentencing is at the discretion of the trial court which discretion an appellate court may not easily interfere with except where the 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. In Bernard Kimani Gacheru v Republic [2002] eKLR the Court of Appeal held thus: -
10.Similarly, in R. v Mohamedali Jamal [1948] 15 EACA, 126, the Eastern Africa Court of Appeal stated thus: -
11.I have considered the nature of the offences that the Applicant faced before the trial court and the attendant punishment provided under the law. I note that the trial court imposed a fine of Kshs. 100,000/= which to my view was excessive. It was not in dispute that the Applicant was a first offender. I find that this is a mitigating factor which the trial court should have taken into account during sentencing as outlined by the Judiciary Sentencing Policy Guidelines (2016). I am guided by the decision in S v Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35, wherein it was held thus: -
12.Having regard to the findings and observations that I have made in this ruling, I find that the period of over 7 months that the Applicant has so far spent in custody following her sentence on 19th August 2024 to the date of delivery of this ruling is sufficient punishment for the offences.
13.In the end, I find that the Application is merited and I hereby allow it. I direct that the Applicant may be set at liberty forthwith unless she is otherwise lawfully held.
14.It is so ordered.
RULING DATED and DELIVERED at NYAMIRA on this 6th day of MARCH 2025.W. A. OKWANYJUDGE