[2024] KEHC 5061 (KLR)
The court held that the applicant, having been convicted on his own plea of guilty and sentenced, had a right of appeal against the sentence under Section 348 of the Criminal Procedure Code. However, instead of appealing, the applicant sought revision. Section 364(5) of the Criminal Procedure Code expressly bars...
Source-derived case information.
- Citation
- [2024] KEHC 5061 (KLR)
- Parties
- Applicant: Denis Bor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E012 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision
- Outcome
- application struck out as incompetent
- Judges
- JK Sergon
- Legal Topics
- Revision Jurisdiction, Plea of Guilty, Sentencing Discretion, Appeal Vs Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Denis Bor
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision
Legal Issues
- 1 Whether the High Court can entertain a revision application by a convict who pleaded guilty and was sentenced, where an appeal against sentence is available.
- 2 Whether the applicant's approach to the court for revision, instead of appeal, is competent under the Criminal Procedure Code.
Ratio Decidendi
The court held that the applicant, having been convicted on his own plea of guilty and sentenced, had a right of appeal against the sentence under Section 348 of the Criminal Procedure Code. However, instead of appealing, the applicant sought revision. Section 364(5) of the Criminal Procedure Code expressly bars revision proceedings at the instance of a party who could have appealed but did not. The court emphasized that revision is a discretionary remedy meant to correct illegality, impropriety, or irregularity, and is not to be used as a substitute for appeal. Since the applicant personally approached the court for revision when an appeal was available and not pursued, the application...
Court Disposition
application struck out as incompetent
Orders
- The revision application is struck out.
Full Case Text
Judgment text and source record
23 paragraphs
Bor v Republic (Criminal Revision E012 of 2023) [2024] KEHC 5061 (KLR) (9 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5061 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Revision E012 of 2023
JK Sergon, J
May 9, 2024
Between
Denis Bor
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with the offence of stealing contrary to section 268 (1) as read with section 275 of the Penal Code. The applicant was convicted on his own plea of guilt and was on 27th June, 2022 sentenced to two (2) years imprisonment by Hon. E.W. Karani in Kericho CM’s Criminal Case No. E1490 of 2022 Republic v Denis Bor.
2. The applicant has moved this court beseeching it to exercise its supervisory power of Revision and set aside the order on sentence and substitute it with a fine. The Applicant stated that he is the sole breadwinner in a family of four school going children and has an ailing mother who depends on him.
3. Section 348 of the Criminal Procedure Code provides inter alia as follows:- “No Appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the extent or legality of the sentence.” It is clear from the above quoted excerpt that the Applicant has a right of Appeal as against the sentence.
4. The Applicant opted to file this Revision instead of challenging the Order on sentence by way of an Appeal. The Law does not permit a party who is entitled to challenge the order on conviction or sentence on Appeal to personally approach the Court for revision.
5. It would appear from the provision of Sections 362 and 364 of the Criminal Procedure Code that the Court may act suo moto or may be prompted by another person or body other than the convict to exercise its power of revision.
6. Section 364(5) of the Criminal Procedure Code provides that; “When an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the instant of the party who could have appealed.”
7. In the case Martin Mavuti Kituyi v Republic HCCR. Revision No. 27 of 2013 the court rendered itself as follows; “… the very nature of revision as a discretionary remedy explains the policy underpinnings of Section 364(5) of the Criminal Procedure Code; that revision should not be a substitute for an appeal whatsoever or insisted upon by a party who has not filed an Appeal where one was provided for. Revision primarily serves to put right instances where a finding, sentence, order or proceedings of a lower court are tainted by incorrectness, impropriety, illegality or irregularity…’’
8. Having personally approached this court to prompt this court to exercise its supervisory power of revision, the applicant breached the Provisions of Section 364 (5) of the Criminal Procedure Code. I find the revision to be incompetently before this court. The same cannot be entertained by this court. I hereby issue an order striking out the revision.
DATED, SIGNED AND DELIVERED THIS 9TH DAY OF MAY, 2024. .........................J.K. SERGONJUDGE