[2024] KEHC 16116 (KLR)
The High Court held that its power of revision under Article 165(6) of the Constitution and Section 362 of the Criminal Procedure Code is limited to correcting illegality, impropriety, or incorrectness in subordinate court proceedings. The applicant's complaint was that the sentence was harsh or excessive, not that...
Source-derived case information.
- Citation
- [2024] KEHC 16116 (KLR)
- Parties
- Applicant: Anthony Kirui Kipchirchir; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E178 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- JM Nang'ea
- Legal Topics
- Sentence Review, Revision Jurisdiction, Functus Officio, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Kirui Kipchirchir
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court can review a sentence imposed by a subordinate court through a miscellaneous application where the sentence is alleged to be harsh or excessive.
- 2 Whether the trial court was functus officio in dismissing the applicant's earlier application for review of sentence.
Ratio Decidendi
The High Court held that its power of revision under Article 165(6) of the Constitution and Section 362 of the Criminal Procedure Code is limited to correcting illegality, impropriety, or incorrectness in subordinate court proceedings. The applicant's complaint was that the sentence was harsh or excessive, not that it was illegal or improper. Therefore, the proper remedy was to file an appeal, not a miscellaneous application for revision. The application was dismissed because the court could not grant the relief sought through the procedure used.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
Kipchirchir v Director of Public Prosecutions (Miscellaneous Application E178 of 2023) [2024] KEHC 16116 (KLR) (20 December 2024) (Ruling)
Neutral citation: [2024] KEHC 16116 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Application E178 of 2023
JM Nang'ea, J
December 20, 2024
Between
Anthony Kirui Kipchirchir
Applicant
and
Director of Public Prosecutions
Respondent
Ruling
1. By this undated Chamber Summons the applicant prays for a non-custodial sentence. He was charged with and convicted of the offence of possession of narcotic drugs in File No. E2187 of 2022 before the Chief Magistrate’s Court at Nakuru and sentenced to a fine of Kshs.100,000. In default of settlement of the fine, the applicant would serve out a period of 10 years in prison. He now seeks review of the sentence lamenting that it is “harsh and excessive.”
2. The applicant had a similar application before the trial court but it was dismissed on the ground that the court was “functus officio.”
3. The Prosecution Counsel has not responded to the application.
4. The applicant’s complaint is that the sentence imposed by the lower court is excessive or harsh. It is not, however, being contended that the sentence is illegal as to invite this court’s power of revision of subordinate court orders pursuant to Article 165(6) of the Constitution and Section 362 of the Criminal Procedure Code. It would therefore appear that the remedy available to the applicant if aggrieved by the sentence is to lodge an appeal to this court.
5. Consequently, this application is dismissed as an appeal cannot be disposed of by means of a Miscellaneous Application such as filed herein.
J. M. NANG’EA, JUDGERULING DELIVERED ON THIS 20THDAY OF DECEMBER, 2024 IN THE PRESENCE OF:The Prosecution Counsel, Ms. SangThe ApplicantThe Court Assistant, Mr. LepikasJ. M. NANG’EAJUDGE