[2023] KEHC 18623 (KLR)
The court held that section 364(5) of the Criminal Procedure Code expressly prohibits a party who has a right of appeal from seeking revision. The rationale is that review is not intended to be an alternative or shortcut to the appellate process. Since the prosecution had the right to appeal the impugned order, it...
Source-derived case information.
- Citation
- [2023] KEHC 18623 (KLR)
- Parties
- Applicant: Director Of Public Prosecution; Respondent: Sammy Kalume Thethe; Respondent: James Kalume Thethe
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E026 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review
- Outcome
- application dismissed
- Judges
- SM Githinji
- Legal Topics
- Criminal Revision, Right of Appeal, Review Vs Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director Of Public Prosecution
Applicant
Sammy Kalume Thethe
Respondent
James Kalume Thethe
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review
Legal Issues
- 1 Whether the prosecution can seek review where a right of appeal exists.
- 2 Whether section 364(5) of the Criminal Procedure Code bars revision at the instance of a party entitled to appeal.
Ratio Decidendi
The court held that section 364(5) of the Criminal Procedure Code expressly prohibits a party who has a right of appeal from seeking revision. The rationale is that review is not intended to be an alternative or shortcut to the appellate process. Since the prosecution had the right to appeal the impugned order, it was not entitled to seek review. The application for review was therefore bad in law and dismissed.
Court Disposition
application dismissed
Orders
- The application for review is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
Director of Public Prosecution v Thethe & another (Miscellaneous Criminal Application E026 of 2023) [2023] KEHC 18623 (KLR) (31 May 2023) (Ruling)
Neutral citation: [2023] KEHC 18623 (KLR)
Republic of Kenya
In the High Court at Malindi
Miscellaneous Criminal Application E026 of 2023
SM Githinji, J
May 31, 2023
Between
Director Of Public Prosecution
Applicant
and
Sammy Kalume Thethe
1st Respondent
James Kalume Thethe
2nd Respondent
Ruling
Coram: Hon Justice S.M Githinji 1. I have seen the lower court proceedings and considered the application for review. The application is by the prosecution/ODPP who were a party in the suit. The provisions of section 364 (5) of the Criminal Procedure Code applies in this matter.It states; -“When an appeal lies from a finding, sentence or order, and no such appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”
2. My reading of this provision is that review is not available to a party who has the right to appeal against the impugned order, finding or sentence by the court as such party should simply file an appeal. Review is not a short cut for appeal and is not meant to be an alternative to appeal.
3. The prosecution should therefore have appealed. The application for review is bad in law and is hereby dismissed.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 31ST DAY OF MAY, 2023…………………………………………………S.M. GITHINJIJUDGE