[2024] KEHC 6514 (KLR)
The High Court declined to exercise its revisionary jurisdiction because the applicant had already filed an appeal against the conviction and sentence, which was pending determination. Section 364(5) of the Criminal Procedure Code expressly prohibits the court from entertaining revision proceedings at the instance...
Source-derived case information.
- Citation
- [2024] KEHC 6514 (KLR)
- Parties
- Applicant: Samson Onsongo Mogere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E087 of 2024
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application dismissed
- Judges
- WA Okwany
- Legal Topics
- Revision Jurisdiction, Sentencing Review, Appeal Pending, Penal Code Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samson Onsongo Mogere
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the High Court can entertain a criminal revision application when an appeal on the same matter is pending.
- 2 Whether the applicant is entitled to a review of sentence in light of the pending appeal.
Ratio Decidendi
The High Court declined to exercise its revisionary jurisdiction because the applicant had already filed an appeal against the conviction and sentence, which was pending determination. Section 364(5) of the Criminal Procedure Code expressly prohibits the court from entertaining revision proceedings at the instance of a party who could have appealed and has in fact filed an appeal. The existence of the pending appeal ousts the court's jurisdiction to consider the revision application, regardless of the merits or recommendations for a non-custodial sentence. The application was therefore dismissed for want of jurisdiction.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Mogere v Republic (Criminal Revision E087 of 2024) [2024] KEHC 6514 (KLR) (30 May 2024) (Ruling)
Neutral citation: [2024] KEHC 6514 (KLR)
Republic of Kenya
In the High Court at Nyamira
Criminal Revision E087 of 2024
WA Okwany, J
May 30, 2024
Between
Samson Onsongo Mogere
Applicant
and
Republic
Respondent
(From the original Conviction and Sentence in the Senior Principal Magistrates’ Court at Keroka, Criminal Case No. MCCR E520 of 2021 by Hon. M. Munyekenye, Senior Principal Magistrate on 5th October 2023)
Ruling
1. The Applicant was convicted for the offence of cutting down trees contrary to Section 334 (c) of the Penal Code.
2. The trial court sentenced him to pay a fine of Kshs. 50,000/= or in default, to serve 18 months’ imprisonment.
3. The Applicant has served 5 months of his sentence. The Sentence Review Mpaera Johnstone recommends a non-custodial sentence.
4. I have however noted that the Applicant has also filed an appeal vide HCCRA E055 of 2023 coming up on 4th June 2024 in which he was released on bond pending appeal.
5. This Court’s revisionary powers in this regard are restricted by the provisions of Section 364 (5) of the Criminal Procedure Code which states, “When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”Thus, this Application lacks merit and is dismissed.Orders accordingly.
DATED AND DELIVERED AT NYAMIRA ON THIS 30TH DAY OF MAY 2024. W.A. OKWANYJUDGE