George Murithi v Republic

recorded or passed, and as to the regularity of any proceedings of any such subordinate court”. 5. Section 164 details how the revision jurisdiction should be exercised by providing as follows:“ 364. 6. (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 section 354, 357 and 358, and may enhance sentence;. (b) in the case of any other order 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 had had an opportunity of being heard either personally or through 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 arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” In the case of Joseph Nduvi Mbuvi v Republic (2019) eKLR, Odunga J. (as he then was) held that:“ In my view, 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19573/eng@2025-04-30 2

page 2 of 3

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”. 7. In this case I called for and perused the trial file. The record shows that the charge before the trial court was trespass upon a private land contrary to Section 3(1) of the Trespass Act Cap 294 Laws of Kenya. The particulars were that on the 6th day of March, 225 at around 03.30 hours at Wiru village, Chogoria Location, Maara Sub-County within Tharaka Nithi Count, trespassed the land Parcel No. Mwimbi/ Murugi/3340 the property of Osward Gitonga David. 8. The Applicant took plea before Hon. D.A Ocharo (SPM) on 7th March, 2025 and pleaded guilty to the charge. He accepted the facts as read by the prosecutor as true and was convicted on his own guilty plea. In mitigation the Applicant stated that he entered the complainant’s home by mistake due to drunkenness. The court considered the mitigation, noted that the Applicant was a first offender and sentenced him to six months’ in prison. 9. Section 3(1) of the Trespass Act provides:“ 3(1) Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.” 10. No specific penalty is attached to the offence under Section 3(1). The applicable penalty therefore was Section 11 which gives the general penalty. It provides:“ Any person guilty of an offence under this Act for which no penalty is expressly provided shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding two months or to both such fine and imprisonment.” 11. It is clear therefore that the trial court was in error when it imposed a sentence not provided for by law. The six months’ imprisonment would have been lawful if the Applicant had been charged under Section 5 of the Trespass Act. 12. In the result, I set aside the sentence of 6 months’ imprisonment. 13. The Applicant has been serving sentence since 7th March, 2025 and is now on the eve of two months which was the lawful term. I consider the period served sufficient. 14. The applicant is set at liberty forthwith unless otherwise lawfully held. Orders accordingly. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 30TH DAY OF APRIL, 2025. .......................... R. LAGAT- KORIR JUDGE Ruling delivered in the presence of Applicant acting in person, Ms Rukunga for the Republic; Muriuki (Court Assistant) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19573/eng@2025-04-30 3

page 3 of 3