[2011] KEHC 3318 (KLR)
The court found that there was no illegality, irregularity, or impropriety in the proceedings or sentence of the subordinate court. The applicant's complaints related to the merits of the conviction and sentence, which are matters for appeal and not revision. Section 364(5) of the Criminal Procedure Code expressly...
Source-derived case information.
- Citation
- [2011] KEHC 3318 (KLR)
- Parties
- Applicant: Enock Mwambia Kingoina; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 4 of 2011
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- application for revision denied
- Legal Topics
- Revision Jurisdiction, False Pretences Offence, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enock Mwambia Kingoina
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the proceedings and sentence in the subordinate court were irregular, illegal, or improper so as to warrant revision.
- 2 Whether the applicant was entitled to revision of conviction and sentence under section 364 of the Criminal Procedure Code.
Ratio Decidendi
The court found that there was no illegality, irregularity, or impropriety in the proceedings or sentence of the subordinate court. The applicant's complaints related to the merits of the conviction and sentence, which are matters for appeal and not revision. Section 364(5) of the Criminal Procedure Code expressly bars revision at the instance of a party who could have appealed but did not. Therefore, the applicant's remedy lay in appeal, not revision, and the application for revision was denied.
Court Disposition
application for revision denied
Orders
- The application for revision is denied.
Full Case Text
Judgment text and source record
14 paragraphs
No. 2728
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL REVISION NO. 4 OF 2011
ENOCK MWAMBIA KINGOINA...............................................................APPLICANT
-VERSUS-
REPUBLIC ....................................................................................... RESPONDENT
ORDER ON REVISION
Having called and perused the record of the trial court I am not satisfied that this is a fit and proper case for revision. The applicant was charged with obtaining money by false pretences contrary to section 313 of the Penal Code. He pleaded not guilty to the charge and he was subsequently tried, found guilty, convicted and sentenced to 18 months imprisonment. The applicant now seeks revision of the above conviction and sentence on the grounds that there was no evidence that he obtained or converted the amount, nor was the amount obtained fraudulently, the prosecution evidence was incongruous and wanting, the applicant’s defence was disregarded and finally that in view of the policy of decongestion of our prisons and mitigation adduced, at worst a non-custodial sentence could have been prudent and or a fine. Otherwise the sentence meted thereof was excessive and unwarranted.
An order of revision can only be made where the proceedings in the subordinate court are found to be incorrect, illegal, suffers from impropriety and or are generally irregular. I do not discern such misgivings in the circumstances of this case. There is nothing illegal, irregular or incorrect with regard to the conviction and sentence of the applicant. The proceedings and subsequent sentence were perfectly legal. The issues as to whether the conviction was proper and sentence imposed manifestly harsh and excessive are appealable. Section 364 (5) of the Criminal Procedure Code is explicit that “When appeal lies from a finding, sentence or order, and no appeal is brought, no proceedings by way of revision shall be entertained at the insistence of the party who could have appealed”.This is the quandary the applicant finds himself. His remedy lies in the appeal and not revision. That being my view of the matter, revision sought is denied.
Revision dated, signed and delivered at Kisii this 25th day of February, 2011.
ASIKE-MAKHANDIA
JUDGE