Kenya Judgment

High Court · High Court at Nanyuki

David Mogaka v Republic [2017] KEHC 3842 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The High Court declined to exercise its revisionary jurisdiction because the applicant's grievance related to the merits of the trial court's finding and order, which are matters properly addressed through an appeal rather than revision. The court found that the trial court's order was made in accordance with section 166(2) of the Criminal Procedure Code, and that there was no error, illegality, or impropriety justifying revision under section 362. The applicant was advised to pursue an appeal if dissatisfied with the trial court's decision.

Court disposition

Revision declined.

Orders

  • The application for revision is declined.
  • The applicant may file an appeal if dissatisfied with the trial court's finding.

02

Material facts

Parties

David Mogaka

Plaintiff

Republic

Respondent

03

Procedural history

  1. Posture

    Criminal Revision / Ruling on Revision

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, David Mogaka, sought revision of the trial court's order that he be held at the pleasure of the president following a finding of guilty but insane for unlawful wounding. He invoked the High Court's jurisdiction under section 362 of the Criminal Procedure Code, seeking a review of the lower court's decision.
Respondent
The respondent maintained that the trial court's order was proper and in accordance with the law, specifically section 166(2) of the Criminal Procedure Code, and that the matter was not suitable for revision but rather for appeal if the applicant was dissatisfied.

05

Court’s reasoning

  1. 01

    Section 362, Criminal Procedure Code

    The High Court's revisionary jurisdiction under section 362 of the Criminal Procedure Code is discretionary and is not a substitute for an appeal.

  2. 02

    Section 166(2), Criminal Procedure Code

    Where a person is found guilty but insane, the court is required to order that the person be held at the pleasure of the president.

  3. 03

    Kenyan case law and statutory interpretation

    Revision is not appropriate where the applicant's grievance relates to the merits of the conviction or sentence, which should be addressed by way of appeal.

06

Ratio, limits and disposition

Ratio decidendi

The High Court declined to exercise its revisionary jurisdiction because the applicant's grievance related to the merits of the trial court's finding and order, which are matters properly addressed through an appeal rather than revision. The court found that the trial court's order was made in accordance with section 166(2) of the Criminal Procedure Code, and that there was no error, illegality, or impropriety justifying revision under section 362. The applicant was advised to pursue an appeal if dissatisfied with the trial court's decision.

Court disposition

Revision declined.

  • The application for revision is declined.
  • The applicant may file an appeal if dissatisfied with the trial court's finding.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 3842 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL REVISION NO. 119 OF 2017

DAVID MOGAKA...............................PLAINTIFF

VERSUS

REPUBLIC..................................RESPONDENT

(BEING A REVISION OF ORDER OF 13TH JUNE 2017 IN THE NANYUKI CHIEF MAGISTRATE’S COURT CRIMINAL CASE NO. 4 OF 2014 BY HON. W. J. GICHIMU)

RULING ON REVISION

1. David Mogaka was found guilty but insane of unlawful wounding contrary to section 237(a) of the Penal Code. The trial court ordered that he be held at the pleasure of the president as provided under section 166(2) of the Criminal Procedure Code.

2. Mogaka has requested this court to exercise its jurisdiction under section 362 of the Criminal Procedure Code and revised that order.

3. I have perused the lower court’s record and I have formed the view that the matter is not suitable for revision by this court. Mogaka should, if dissatisfied with the finding of the trial court, file an appeal against the same. Accordingly revision is declined.

DATED AT NANYUKI THIS 2ND DAY OF AUGUST 2017

MARY KASANGO

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 237(a), Penal Code

Legislation

Legislation referenced in the available case record.

Section 166(2), Criminal Procedure Code

Legislation

Legislation referenced in the available case record.

Section 362, Criminal Procedure Code

Legislation

Legislation referenced in the available case record.

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