[2020] KEHC 3326 (KLR)
The court held that the application was procedurally defective because it sought both sentence revision and leave to appeal out of time in the same motion, contrary to Sections 362-364 of the Criminal Procedure Code. The applicant failed to elect which remedy to pursue, and the application was therefore dismissed...
Source-derived case information.
- Citation
- [2020] KEHC 3326 (KLR)
- Parties
- Applicant: Michael Juma Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 48 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Revision and Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Leave to Appeal Out of Time, Grievous Harm, Criminal Procedure Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Juma Ochieng
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Revision and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the court can consider an application for sentence revision and leave to appeal out of time simultaneously under the Criminal Procedure Code.
- 2 Whether the applicant has demonstrated sufficient grounds for sentence revision from custodial to non-custodial sentence.
Ratio Decidendi
The court held that the application was procedurally defective because it sought both sentence revision and leave to appeal out of time in the same motion, contrary to Sections 362-364 of the Criminal Procedure Code. The applicant failed to elect which remedy to pursue, and the application was therefore dismissed for lack of substance. The court found no merit in the request for sentence revision, as the application was improperly constituted and did not meet the statutory requirements for consideration.
Court Disposition
application dismissed
Orders
- The application for sentence revision and leave to appeal out of time is dismissed.
- File closed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. 48 OF 2020
MICHAEL JUMA OCHIENG........................................................APPLICANT
VERSUS
REPUBLIC....................................................................................RESPONDENT
(Being an Application for Revision of sentence in Criminal Case No. 295 of 2019 in the Principal Magistrate’s Court at Siaya and HCCRA No. 62 of 2019 in the High Court at Siaya dated 20. 7.2020 before Hon. Lady Justice R.E. Aburili, J)
RULING
1. The Notice of Motion dated 5/8/2020 seeks for the main prayer namely, leave to file an appeal out of time and Sentence Review to non-custodial from custodial Sentence of 10 years imprisonment.
2. The Law - Sections 362 - 364 of the Criminal Procedure Code prohibits an appeal and sentence Revision being considered simultaneously. The applicant/convict must elect which prayer he wishes to be considered.
3. Further, the attached document only complains of the sentence and pleads for review of custodial sentence claiming that the convict is now reformed and has attended various Theological programs and lessons every weekend in prison. He pleads for leniency.
4. He was sentenced to serve 10 years imprisonment for grievous harm, upon conviction on 5/2/2020.
5. I have considered the dual yet mixed up application. I find no substance in the application for Sentence Revision which is mixed up with leave to appeal out of time. The same is hereby dismissed.
6. File closed.
7. Orders accordingly.
Date, signed and Delivered at Siaya this 1st Day of September 2020.
R.E. ABURILI
JUDGE