[1981] KECA 18 (KLR)
The Court of Appeal held that the appellant's appeal was misconceived because there is no right of appeal against a High Court judge's refusal to exercise revisionary jurisdiction under the Criminal Procedure Code. The judge was not obliged to entertain the application for revision, particularly since the appellant...
Source-derived case information.
- Citation
- [1981] KECA 18 (KLR)
- Parties
- Appellant: Japheth Osunga Walome; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 68 of 1981
- Procedural Posture
- Criminal Appeal / Appeal Against High Court Order Declining Revision
- Outcome
- appeal dismissed
- Legal Topics
- Revisionary Jurisdiction, Right of Appeal, Stock Theft, Sentencing, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japheth Osunga Walome
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against High Court Order Declining Revision
Legal Issues
- 1 Whether the appellant had a right of appeal against the High Court's refusal to exercise revisionary jurisdiction.
- 2 Whether the High Court erred in declining to revise the conviction and sentence of the appellant.
- 3 Whether the appellant could insist on revision where a right of appeal existed.
Ratio Decidendi
The Court of Appeal held that the appellant's appeal was misconceived because there is no right of appeal against a High Court judge's refusal to exercise revisionary jurisdiction under the Criminal Procedure Code. The judge was not obliged to entertain the application for revision, particularly since the appellant had a right of appeal against his conviction and sentence, which he had not exercised. The law is clear that revision is discretionary and not available as of right where an appeal lies. The court further doubted its own jurisdiction to entertain the appeal but, even assuming jurisdiction, found no merit in the appeal and dismissed it.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
( Coram: Law, Miller & Potter JJA )
CRIMINAL APPEAL NO. 68 OF 1981
BETWEEN
JAPHETH OSUNGA WALOME.....................................................APPELLANT
AND
REPUBLIC....................................................................................RESPONDENT
JUDGMENT
The appellant was convicted of stealing one head of cattle, contrary to Section 275 of the Penal Code, and was sentenced to 9 months imprisonment, by a District Magistrate at Siaya. He did not appeal to the High Court, but through an advocate he applied to the High Court asking:
a) for bail pending appeal, and
b) for the case to be disposed of on revision.
The learned judge (Scriven J) expressed the view that the conviction was sound, as he could see no “patent omission or misdirection on the magistrate’s part, such as to require revision, and he pointed out that if he were to revise the case, he would be bound to hold that the appellant was in effect (although charged under the wrong section) charged with stock theft, for which offence, the minimum statutory punishment is 7 years imprisonment. He dismissed the application. The appellant has appealed against that order. It should be noted that he has never lodged an appeal against his conviction. His complaint is that the judge should not have rejected his application for the case to be revised. In our opinion, the appellant’s appeal is based on a misconception.
Revision is a discretionary remedy. Where the revisionary jurisdiction is exercised, a right of appeal lies under Section 361(7) of the Criminal Procedure Code, but where the judge declines as was in this case to exercise that jurisdiction, then there is no right of appeal. A judge is not bound to accede to an application for revision, all the more so if he has reason to think that the applicant was proposing to appeal as was the case here, as he had included an application for bail pending appeal in his application for the case to be revised. Furthermore, subsection (5) of Section 364 of the Criminal Procedure Code, makes it clear that a party who has a right of appeal, like the appellant in this case, cannot insist on the case being entertained in revision, although the High Court is not of course precluded from exercising its revisionary jurisdiction sui motuif it thinks fit, even if the aggrieved party has a right of appeal, see Republic v Ajid Singh[1957] EA 822
We doubt if we have jurisdiction in this matter, although the learned judge purported to give leave to appeal. But even if we have jurisdiction, we see no merits in this appeal, which we order to be dismissed.
Dated and Delivered at Kisumu this 1st day of December 1981.
E.J.E.LAW
....................................
JUDGE OF APPEAL
C.H.E.MILLER
...................................
JUDGE OF APPEAL
K.D.POTTER
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the
original.
DEPUTY REGISTRAR