[2020] KEHC 802 (KLR)
The court held that the applicant, having failed to exercise his right of appeal against the conviction and sentence, is barred by Section 364(5) of the Criminal Procedure Code from seeking revision of the sentence. The court further found that the reasons advanced by the applicant, including being a first offender,...
Source-derived case information.
- Citation
- [2020] KEHC 802 (KLR)
- Parties
- Applicant: Enock Marube Bosire; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E002 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- EM Muchoki
- Legal Topics
- Revision Jurisdiction, Right of Appeal, Sentence Review, Criminal Procedure Code Section 364, Constitution Article 50, Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enock Marube Bosire
Applicant
The Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant is entitled to seek revision of his sentence after failing to appeal within time.
- 2 Whether the grounds advanced by the applicant justify revision of the sentence imposed by the trial court.
Ratio Decidendi
The court held that the applicant, having failed to exercise his right of appeal against the conviction and sentence, is barred by Section 364(5) of the Criminal Procedure Code from seeking revision of the sentence. The court further found that the reasons advanced by the applicant, including being a first offender, remorse, and family hardship, are matters of mitigation that were or should have been considered by the trial court and do not justify revision. The court also noted that the applicant did not provide any material to support the application for review under Article 50(2)(q) of the Constitution. Consequently, the application was found to be incompetent and was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
REVISION NO. E002 OF 2020
ENOCK MARUBE BOSIRE...............................................................APPLICANT
-VRS-
THE REPUBLIC................................................................................RESPONDENT
{From original Conviction and Sentence of Hon. C. W. Waswa – RMin the
Original Nyamira Chief Magistrate’s Court Sexual Offence No. 21 of 2019}
RULING
This file has been placed before me for revision vide a Notice of Motion dated 14th July 2020. In the application the applicant seeks revision of his sentence of seven years imprisonment for the offence of rape. He bases his application on grounds that he is very remorseful, that he is a first offender and a single parent to underage children who are suffering as he was the sole breadwinner and that since incarceration he has reformed and he now prays for a second chance to serve his nation. In his affidavit in support of the application he has stated that he did not appeal the conviction and sentence because his family could not raise the fee required, that he did not receive the judgement in good time and that it is in the interest of justice that this application is heard and determined on its merit.
I am however not persuaded that the application ought to succeed. Firstly, as stated by the applicant he had a right of appeal which he did not exercise. He is therefore by virtue of Section 364 (5)of theCriminal Procedure Code restrained from seeking revision. Section 364 (5)of theCriminal Procedure Codestates: -
“(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.”
If this application is made because the applicant did not appeal on time it must fail because he could have sought leave to appeal out of time. Secondly an appellant does not pay any fees to appeal a conviction and sentence to the High Court so again that too is not a good ground. That he is a first offender is an issue of mitigation which I believe was considered by the trial court. As for the fact that he has reformed that is a ground to be considered by the Prison authorities when considering remission.
Secondly, even were this court to assume that the applicant has come to this court in exercise of his right for review to a higher court provided for in Article 50 (2) (q)of theConstitution I still find that he has not furnished this court with any material to enable it to consider that application. The application would still fail for being incompetent. The same is therefore dismissed.
E. N. MAINA
JUDGE
18/12/2020