[2008] KEHC 1244 (KLR)
The court held that the application for revision was improperly filed as a notice of motion instead of the established practice of writing a letter to the Deputy Registrar outlining the alleged illegality. Furthermore, the court found that revision is not available where a right of appeal exists and no appeal has...
Source-derived case information.
- Citation
- [2008] KEHC 1244 (KLR)
- Parties
- Applicant: Humphrey Gitonga Mwirigi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 65 of 2008
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision
- Outcome
- application rejected and dismissed
- Legal Topics
- Criminal Revision Procedure, Right of Appeal, High Court Powers, Application Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Humphrey Gitonga Mwirigi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision
Legal Issues
- 1 Whether the application for revision was properly before the court under Section 362 of the Criminal Procedure Code.
- 2 Whether revision is available where there is a right of appeal and no appeal has been brought.
Ratio Decidendi
The court held that the application for revision was improperly filed as a notice of motion instead of the established practice of writing a letter to the Deputy Registrar outlining the alleged illegality. Furthermore, the court found that revision is not available where a right of appeal exists and no appeal has been brought, as expressly provided by Section 365(5) of the Criminal Procedure Code. Since the applicant had a right of appeal and failed to exercise it, the court was barred from entertaining the revision application. Consequently, the application was rejected and dismissed for procedural impropriety and lack of jurisdiction under the circumstances.
Court Disposition
application rejected and dismissed
Orders
- The application dated 5 August 2008 is rejected and dismissed.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Criminal Revision 65 of 2008
1. Criminal Division
2. Court vacation
3. Revision
Procedure
i) Section 362 of Criminal Procedure Code Cap.75
Laws of Kenya
ii) Only a letter is required to be written.
iii) No notice of motion is filed
iv) No appearance is to be made by any party.
v) The court on its own discretion may ask for
appearance of parties.
4. Order: Application 5 August 2008 marked as rejected.
Revision not available where there is a right of appeal.
5. Case law – nil
6. Parties absent
K.A. Nyachoti & Co. Advocates for the applicant-absent
State Counsel for the respondent. – absent
(From Original case No. 23888 of 2004 at Chief Magistrates Court at Makadara, S.N. Karani (Ms)
HUMPHREY GITONGA MWIRIGI ………………………. APPLICANT
VERSUS
REPUBLIC ……………………………………………… RESPONDENT
RULING
REVISION
I: Procedure
1. I have a notice of motion dated the 5 August 2008 and field on 7 August 2008, under Section 362 of the Criminal Procedure Code seeking the powers of the High Court to call for a file, examine the record of the criminal proceeding before any subordinate court, to satisfy this court of the correctness and or legality of the said subordinate courts proceeding.
2. According to the 1987 and 2008 Criminal Procedure Code there is no rules provided in the manner in which one may make an application before the court.
3. The practice for many years in these courts has been for a letterto be written outlining the said illegality of the record of the subordinate court. This letter is addressed to the Deputy Registrar of the High Court and not to the trial magistrate who heard the matter. The Deputy Registrar to the High Court, Criminal Division would open a revision file. On the said file alone, the Hon. Judge would accordingly act on.
4. The Hon. Judge would correct such irregularity suo moto. On the other hand the Hon. Judge would ask for the advocate or persons to appear in order to seek certain clarification. The general rule under Section 365 is that:
“No party has a right to be heard either personally or by an advocate before the High Court exercising the power of revision”.
5. The notice of motion before me has been irregularly filed.
6. Further, even if the applicant had written a letter, the issue upon the request for revision lies in an appeal. Section 365 (5) requires that no application for revision may be entertained.
It states:-
“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 interest of the party who would have appealed.”
7. The application is accordingly rejected and dismissed.
DATED THIS 8TH DAY OF AUGUST 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
K.A. Nyachoti & Co. Advocates for the applicant-absent
State Counsel for the respondent. – absent