[2016] KEHC 5453 (KLR)
The High Court declined to revise the applicant's sentence on the basis that it is functus officio, having already determined the applicant's appeal through a court of concurrent jurisdiction. Section 364(5) of the Criminal Procedure Code expressly prohibits revision proceedings at the insistence of a party who...
Source-derived case information.
- Citation
- [2016] KEHC 5453 (KLR)
- Parties
- Applicant: Joseph Juma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 281 of 2015
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application for revision declined
- Judges
- AW Mwangi
- Legal Topics
- Revision Jurisdiction, Functus Officio, Sentence Review, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Juma
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the High Court has jurisdiction to revise the applicant's sentence after an appeal has been heard and determined by a court of concurrent jurisdiction.
- 2 Whether the applicant is entitled to a non-custodial sentence based on the Probation Officer's report.
Ratio Decidendi
The High Court declined to revise the applicant's sentence on the basis that it is functus officio, having already determined the applicant's appeal through a court of concurrent jurisdiction. Section 364(5) of the Criminal Procedure Code expressly prohibits revision proceedings at the insistence of a party who could have appealed, where such an appeal has already been heard and determined. The only recourse available to the applicant is to file an appeal to the Court of Appeal. The recommendation for a non-custodial sentence by the Probation Officer could not be considered due to the court's lack of jurisdiction in the matter.
Court Disposition
application for revision declined
Orders
- The application for revision of sentence is declined.
- No revision of the sentence imposed by the lower court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL REVISION NO. 281 OF 2015
JOSEPH JUMA .................................................................................APPLICANT
VERSUS
REPUBLIC ....................................................................................RESPONDENT
(Being a Revision from the order of Butere Principal Magistrate's Court Criminal Case No.6 of 2014 by Hon. E.S.Olwade, Principal Magistrate on 4th September, 2014)
RULING ON REVISION
Joseph Juma was charged with the offence of grievous harm contrary to section 234 of the Penal Code. After a full trial, the applicant was convicted of the said offence and sentenced to serve 6 years imprisonment with effect from 4th September, 2014.
The applicant herein filed an appeal on 30th September, 2014, which was determined by Justice Bwonwonga in his judgment dated and delivered on 24th July, 2015. The conviction and sentence imposed on the applicant was upheld.
The matter was referred to this court for revision of the applicant's sentence in accordance with the provisions of section 364 of the Criminal Procedure Code Cap 75, Laws of Kenya.
A Probation Officer's report on record dated 3rd December, 2015 indicates that the applicant has undergone spiritual counseling sessions in prison. He has also learnt agro-forestry which he is willing to introduce at home.
The Probation Officer notes that the applicant qualifies for a non-custodial sentence and recommends that he serves the remainder of his prison term under community service.
The applicable provisions of law herein is Section 364 (5) of the Criminal Procedure Code which provides that:-
"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."
Having noted that the applicant's appeal was heard and determined by a court of concurrent jurisdiction, this court is functus officio and has no jurisdiction to revise the sentence that was meted out to the applicant. The only recourse available to him is that of filing an appeal to the Court of Appeal.
For the foregoing reasons, I decline to revise the sentence that was meted out to the applicant.
It is so ordered.
DELIVERED, DATEDand SIGNED at KAKAMEGAon this 29th day of April, 2016.
NJOKI MWANGI
JUDGE