REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA CRIMINAL REVISION NO. 5 OF 2015 LAWRENCE WACHIRA MIANO................APPLICANT VS REPUBLIC..........................................RESPONDENT REVISION 1. This is a revision arising from a conviction and sentence in Kerugoya Chief Magistrate Court Criminal case NO. 282 of 2013 where LAWRENCE WACHIRA MIANO was charged with the offence of Grievous Harm contrary to Section 234 of Penal Code. The particulars as per the charge sheet which was amendment to an initial charge of assault causing bodily harm contrary to Section 251 of Penal Code, shows that the accused on 18th day of June 2013 at KIAWAKARA village within Kirinyaga County unlawfully did grievous harm to one RUTH WANJIRA NGURE the complainant at the trial. 2. The record of proceedings and the judgment has been brought to my attention vide a letter dated 23rd April 2015 from the trial magistrate addressed to this court for purposes of revision under Section 363 of the Criminal Procedure Code. 3. The basis for revision that the accused was convicted and sentenced on a charge of assault causing bodily harm which charge had been amended on 8th July 2003 and substituted with a new charge sheet which was read to the accused and pleaded not guilty as per the record which has been forwarded to this court . 4. It is apparent from the record of proceedings at the trial related to the new charge sheet but the initially charge sheet was not endorsed to reflect that it had been amended . This is an inadvertence which appeared to have led the trial magistrate after the trial to write a judgment where he inadvertently convicted and sentenced the accused on a nonexistent charge as the same had been substituted. 5. I have examined the proceedings on record and the basis upon which the file has been placed before me. It is clear that both the conviction and sentence were incorrect and irregular. In exercise of my powers under Article 165 (6) and (7) of the Constitution and Section 362 of the Criminal Procedure Code, it is fair and just to revise both the conviction and sentence. 6. I have examined the evidence adduced at the trial and I am satisfied that the evidence was sufficient to sustain the charge of causing Grievous Harm against the accused. Under Section 364 of the Criminal Procedure Code I hereby set aside the incorrect conviction and sentence imposed by the trial magistrate and in its place enter a conviction against the accused for the offence of Grievous Harm contrary to Section 234 of Penal Code as per the substituted charge dated 8th July 2013. He is convicted accordingly and pursuant to Section 364 (2) Criminal Procedure Code he is required to
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appear before this court on 28th April 2015 for purposes of being informed of revision and to be given an opportunity of being heard before the correct legal sentence is imposed against him. Production order to issue. R.K.LIMO JUDGE DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 27TH DAY OF APRIL 2015 28/4/2015 Before Hon. R.Limo Judge CC - Mbogo Sitati for State Accused/Convict - present Interpretation - English/Kikuyu Sitati for State present Lawrence Wachira Miano present COURT The accused is given explanation in Kikuyu language on the basis of revision made by the Court and is invited to address the Court before sentence. LAWRENCE WACHIRA MIANO I have done this case for 2 years and four months in custody. While at remand, I suffered. I am asthmatic and I have cancer. I had prayed for a retrial but the same was turned down. I pray that I be given the sentence I had been given by trial Court. My family is suffering. COURT This Court has considered the mitigation by the accused but it is also in the interest of justice to consider the injuries that accused inflicted on the complainant which were serious. He is sentenced to serve twelve years imprisonment. Right of appeal 14 days. R.K. LIMO JUDGE
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DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 28TH DAY OF APRIL, 2015
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