[2016] KEHC 223 (KLR)
The court held that it lacks jurisdiction to review sentences imposed by the Chief Magistrate's Court in the exercise of its judicial review or constitutional jurisdiction unless the applicant has exhausted all appellate remedies. Since the applicant had not appealed to the Court of Appeal against the refusal to...
Source-derived case information.
- Citation
- [2016] KEHC 223 (KLR)
- Parties
- Applicant: Martin Oloo Maloba; Respondent: Director of Public Prosecution; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 333 of 2015
- Procedural Posture
- Judicial Review / Ruling on Application for Review and Interpretation
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Judicial Review Powers, Sentence Review, Exhaustion of Appeal Rights, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Oloo Maloba
Applicant
Director of Public Prosecution
Respondent
Attorney General
Respondent
Procedural Posture
Judicial Review / Ruling on Application for Review and Interpretation
Legal Issues
- 1 Whether the High Court can review sentences imposed by the Chief Magistrate's Court in the exercise of its judicial review jurisdiction.
- 2 Whether the applicant exhausted all appellate avenues before seeking review in the High Court.
- 3 Whether the applicant is entitled to acquittal or review of sentence under the cited constitutional and statutory provisions.
Ratio Decidendi
The court held that it lacks jurisdiction to review sentences imposed by the Chief Magistrate's Court in the exercise of its judicial review or constitutional jurisdiction unless the applicant has exhausted all appellate remedies. Since the applicant had not appealed to the Court of Appeal against the refusal to revise or consolidate his sentences, he was barred from seeking review from the High Court. The application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The applicant's application is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW
MISCELLANEOUS APPLICATION NO. 333 OF 2015
IN THE MATTER OF: AN APPLICATION UNDER ARTICLE 165(b) AND (d) OF THE CONSTITUTION AND MATTER OF EXERCISING SUPERVISORY JURISDICTION OVER CRIMINAL CASES NUMBER 520 OF 2009, 580 OF 2009 AND 578 OF 2009 IN THE CHIEF MAGISTRATE COURT AT MILIMANI LAW COURTS NAIROBI
BETWEEN
MARTIN OLOO MALOBA …………..............................................………………...APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTION………………………………….1ST RESPONDENT
THE ATTORNEY GENERAL………..............................................………….2ND RESPONDENT
RULING
1. The Petitioner/ applicant in this matter is self represented. He filed an application by way of chamber summons undated under certificate of urgency seeking orders:
2. That the court be pleased to grant the appellant ( sic) to review the sentence in the above mentioned case numbers Cr 520/2009 /578/2009 and Cr 580/2009 at Chief Magistrates Court Milimani Republic V Martin Oloo Maloba.
3. The applicant petitioner also filed a sworn affidavit and simultaneous with the chamber summons he also filed a notice of motion dated 17th September 2015 seeking for interpretation of Sections 12(4) (1) of the Criminal Procedure Code, Section 137(1) (2), 333(2) of the Criminal Procedure Code and Article 165(3) (d) (i) (ii) of the Constitution.
4. The applicant in his submissions seeks for an acquittal. He concedes that he did file for review of sentences after consolidation, which was dismissed by the Criminal High Court Division and that he does not understand why his case was not considered yet there is a similar matter wherein Honourable Ngenye J considered and granted the orders.
5. I have considered the applicant’s applications on record as a whole .This court is not an appellate court when exercising Judicial Review jurisdiction. Even when exercising jurisdiction as the Constitutional and Human Rights Court, it is not an appellate court.
6. Furthermore, for the court to exercise the powers of judicial review or as stipulated under Article 47 and 165 (7) of the Constitution to review sentence imposed by a court of competent jurisdiction, it must be shown that the petitioner/applicant has exhausted all the appeal avenues. In the instant case, the applicant has not filed any appeal to the Court of Appeal against refusal to revise his sentence and or to consolidate them. In the premise, he is barred from seeking a review of the same from this court.
7. Accordingly, I find that the applicant’s application lacks merit. The same is hereby dismissed with no orders as to costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 19th day of December, 2016.
R.E. ABURILI
JUDGE
In the presence of Mr Martin Oloo Maloba
Mr Muranga h/b for Mr Kihara for the DPP
CA: Lorna