[2023] KEHC 26456 (KLR)
The High Court declined to entertain the application for revision because the applicant had a right of appeal against the sentence but did not exercise it. Section 364(5) of the Criminal Procedure Code expressly prohibits revision at the insistence of a party who could have appealed, unless the sentence is illegal,...
Source-derived case information.
- Citation
- [2023] KEHC 26456 (KLR)
- Parties
- Applicant: Barongo Sianyo Atembe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 194 of 2023
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application declined
- Judges
- KW Kiarie
- Legal Topics
- Revision Jurisdiction, Sentence Review, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barongo Sianyo Atembe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the High Court can entertain a criminal revision application where the applicant had a right of appeal but did not exercise it.
- 2 Whether the sentence imposed by the trial court was illegal, warranting intervention by the High Court on revision.
Ratio Decidendi
The High Court declined to entertain the application for revision because the applicant had a right of appeal against the sentence but did not exercise it. Section 364(5) of the Criminal Procedure Code expressly prohibits revision at the insistence of a party who could have appealed, unless the sentence is illegal, which was not established in this case. The court emphasized that interfering with the sentence in these circumstances would be irregular and would amount to usurping the powers reserved for the President under Article 133 of the Constitution. The applicant was advised to either seek leave to appeal out of time or to petition the President for mercy.
Court Disposition
application declined
Orders
- The application for revision is declined.
Full Case Text
Judgment text and source record
21 paragraphs
Atembe v Republic (Criminal Revision 194 of 2023) [2023] KEHC 26456 (KLR) (5 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26456 (KLR)
Republic of Kenya
In the High Court at Kisii
Criminal Revision 194 of 2023
KW Kiarie, J
December 5, 2023
Between
Barongo Sianyo Atembe
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Criminal case NO. 2451 of 2018 of the Chief Magistrate’s Court at Kisii by Hon. S.N. Makila– Senior Resident Magistrate)
Ruling
1. The Criminal Procedure Code provides the High Court with jurisdiction to revise criminal matters decided by lower courts under section 362 in the following terms: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.The court's revision is, therefore, limited to ensuring the correctness, legality, and propriety of any findings, sentences, or orders made by the subordinate court.
2. Section 364 (5) of the Criminal Procedure Code restricts the revisional jurisdiction in the following as follows: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.
3. The appellant had the right to appeal against the sentence imposed by the trial court on July 19th, 2019, but chose not to do so. Therefore, he cannot approach this court through an application for revision, unless the sentence given was illegal, which is not the case. It would be irregular and illegal for this court to review the sentence.
4. The applicant has two options; either to seek leave to file an appeal out of time or to petition the president under article 133 of the Constitution which Provides:(1)On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—(a)granting a free or conditional pardon to a person convicted of an offence;(b)postponing the carrying out of a punishment, either for a specified or indefinite period;(c)substituting a less severe form of punishment; or(d)remitting all or part of a punishment.(2)There shall be an Advisory Committee on the Power of Mercy, comprising—(a)the Attorney-General;(b)the Cabinet Secretary responsible for correctional services;and(c)at least five other members as prescribed by an Act of Parliament, none of whom may be a State officer or in public service.(3)Parliament shall enact legislation to provide for—(a)the tenure of the members of the Advisory Committee;(b)the procedure of the Advisory Committee; and(c)criteria that shall be applied by the Advisory Committee in formulating its advice.(4)The Advisory Committee may take into account the views of the victims of the offence in respect of which it is considering making recommendations to the President.
5. If this court interferes with the sentence, it will be tantamount to usurpation of the powers of the president. It can only interfere with the sentence of a subordinate court, on appeal in appropriate cases. The application is therefore declined.
DELIVERED AND SIGNED AT KISII THIS 5THDAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE