[2020] KEHC 914 (KLR)
The court held that the applicant's request for revision of sentence was incompetent and unmerited. The applicant, having been convicted and sentenced for defilement, had a statutory and constitutional right to appeal, which he failed to exercise. Section 364(5) of the Criminal Procedure Code expressly prohibits...
Source-derived case information.
- Citation
- [2020] KEHC 914 (KLR)
- Parties
- Applicant: Dennis Sagini Omari; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Revision Case E006 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Notice of Motion for Revision of Sentence
- Outcome
- application dismissed
- Legal Topics
- Revision Jurisdiction, Right of Appeal, Sexual Offences, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Sagini Omari
Applicant
The Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Notice of Motion for Revision of Sentence
Legal Issues
- 1 Whether the High Court can entertain a revision application where the applicant has not exercised his right of appeal against conviction and sentence.
- 2 Whether the applicant has provided sufficient material to warrant review or reduction of sentence.
Ratio Decidendi
The court held that the applicant's request for revision of sentence was incompetent and unmerited. The applicant, having been convicted and sentenced for defilement, had a statutory and constitutional right to appeal, which he failed to exercise. Section 364(5) of the Criminal Procedure Code expressly prohibits revision proceedings where an appeal lies but has not been brought by the party. The applicant's reasons for not appealing—confusion and subsequent reformation—do not constitute sufficient grounds for the court to exercise its revisionary jurisdiction. Furthermore, the application was unsupported by relevant proceedings or judgment, rendering it baseless. The court emphasized that...
Court Disposition
application dismissed
Orders
- The application for revision is dismissed as incompetent and unmerited.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
REVISION NO. E006 OF 2020
DENNIS SAGINI OMARI...................APPLICANT
=VRS=
THE REPUBLIC...............................RESPONDENT
{From original Conviction and Sentence of Hon. C. W. Waswa (Mr.) – RM in the Original Nyamira Chief Magistrate’s
Court Sexual Offence No. 13 of 2019}
RULING
This file has been placed before me for revision vide a Notice of Motion dated 6th August 2020. The applicant who is a convicted prisoner prays that his application be allowed, conviction quashed and sentence set aside. In the body of the application he pleads for reduction of his sentence and requests to be supplied with proceedings and judgement to enable him explore more grounds for appeal. The application is supported by an affidavit (undated) in which the applicant deposes that he was sentenced to ten (10) years imprisonment for the offence of defilement; that he is not appealing against the conviction but is only asking for a review of the sentence. Attached to the application is a warrant of commitment showing that he was sentenced on 6th May 2019 in the Chief Magistrate’s Court at Nyamira.
I have considered the application carefully and I am of the view that firstly it is incompetent and not properly before this court and secondly that it has no merit. Upon conviction and sentence the accused person has a right of appeal. That right is enshrined in Article 50 (2) (q)of the Constitutionwhich states: -
“(2) Every accused person has the right to a fair trial, which includes the right: -
(q) If convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
That right is given expression in Section 347 (1) (a) of the Criminal Procedure Code which states: -
“347 (1) Save as in this part provided—
(a) a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; ……….”
Convictions and sentences for sexual offences are therefore appealable as of right. It is clear from Section 347 (1) (a) of the Criminal Procedure Code that a person who is convicted of an offence and who is aggrieved is expected to exercise that right of appeal first to the High Court and then to the Court of Appeal as provided under the law. A person who fails to exercise that right cannot come to this court for revision of a sentence lawfully passed by the trial court. Indeed, Section 364 (5) of the Criminal Procedure Codeexpressly prohibits that and states: -
“(5) 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.”
The applicant has attached a certificate to the effect that he has not filed any appeal in respect to his case. He is therefore by virtue of Section 364 (5)of the Criminal Procedure Codeprevented from filing this application. For that reason, his application is not properly before this court and is incompetent.
Secondly, even were we to assume the power of revision vested in this court by Section 362of the Criminal Procedure Code is different from the right to a review by a higher court donated to a convicted person by Article 50 (2) (q) of the Constitution and that the applicant seeks to exercise that right under Article 50 (2) (q)of the Constitution,I would still find the application incompetent as no material has been placed before me that would enable me to review the sentence. No proceedings or judgement have been attached to the application and the notice of motion is therefore unsupported. It is also my finding that the reasons advanced that after the conviction and sentence “I was totally confused and was unable to write an appeal in time as per the law (14 days) and that the applicant is now spiritually mentored and ready to lead a life of a role model within the society” do not suffice to upset the sentence of the lower court. In regard to the delay in filing an appeal, the applicant had opportunity to apply for leave to appeal out of time and as for the ground that he has reformed that ought to be taken into account by the Prison authorities when considering remission.
In the upshot the application is found to be not only incompetent but also unmerited and it is dismissed.
E. N. MAINA - J
18/12/2020