[2011] KEHC 3240 (KLR)
The court held that there was no illegality, irregularity, or impropriety in the proceedings or sentence imposed by the subordinate court. The applicant's plea of guilty and status as a first offender were considered by the trial court, and the sentence was within the law. The court further held that the issue of...
Source-derived case information.
- Citation
- [2011] KEHC 3240 (KLR)
- Parties
- Applicant: George Tengenya Onyinkwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 3 of 2011
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Revision denied.
- Legal Topics
- Traffic Offences, Sentencing Principles, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Tengenya Onyinkwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the subordinate court's proceedings or sentence were incorrect, illegal, improper, or irregular.
- 2 Whether the sentence imposed was manifestly harsh and excessive and thus subject to revision.
Ratio Decidendi
The court held that there was no illegality, irregularity, or impropriety in the proceedings or sentence imposed by the subordinate court. The applicant's plea of guilty and status as a first offender were considered by the trial court, and the sentence was within the law. The court further held that the issue of whether the sentence was harsh or excessive is a matter for appeal, not revision, as explicitly provided by Section 364(5) of the Criminal Procedure Code. Since the applicant had not appealed, the court could not entertain the application for revision. The applicant's remedy lay in filing an appeal, as indicated by his letter to the chief magistrate's court.
Court Disposition
Revision denied.
Orders
- The application for revision is denied.
Full Case Text
Judgment text and source record
14 paragraphs
No. 2727
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL REVISION NO. 3 OF 2011
GEORGE TENGENYA ONYINKWA .......................................................................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 accused was charged with six traffic offences. He pleaded guilty to all the counts and was sentenced upon conviction on his own plea of guilty to a total fine of kshs. 23,000/= in default imprisonment for a total of 300 days. The accused now seeks revision of the above sentence on the grounds that he was a first offender, pleaded guilty with intent of being granted leniency and that the sentence imposed was manifestly harsh and excessive.
An order on 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 sentences imposed as aforesaid. It was perfectly legal. The issue as to whether the sentences aforesaid are manifestly harsh and excessive is 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 convict finds himself. There is however indication that indeed the convict desires to appeal going by his letter to the chief magistrate’s court dated 20th January, 2011. That is where his remedy lies. Otherwise revision sought is denied.
Revision, dated, signed and delivered at Kisii this 25th day of February, 2011.
ASIKE-MAKHANDIA
JUDGE