[2024] KEHC 6553 (KLR)
The High Court declined to exercise its revisionary jurisdiction because the applicant had already filed an appeal against the conviction and sentence, and the respondent had filed submissions in that appeal. Section 364(5) of the Criminal Procedure Code expressly prohibits the court from entertaining revision...
Source-derived case information.
- Citation
- [2024] KEHC 6553 (KLR)
- Parties
- Applicant: Samson Onsongo Mogere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E088 of 2024
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application dismissed
- Judges
- WA Okwany
- Legal Topics
- Revisionary Jurisdiction, Appeal Pending, Burglary Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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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 already pending.
- 2 Whether the applicant is entitled to a non-custodial sentence based on the Sentence Review Report.
Ratio Decidendi
The High Court declined to exercise its revisionary jurisdiction because the applicant had already filed an appeal against the conviction and sentence, and the respondent had filed submissions in that appeal. 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, where an appeal is pending. The existence of the appeal thus ousted the court's jurisdiction to consider the revision application, regardless of the merits or recommendations in the Sentence Review Report. The application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
- Orders accordingly.
Full Case Text
Judgment text and source record
20 paragraphs
Mogere v Republic (Criminal Revision E088 of 2024) [2024] KEHC 6553 (KLR) (30 May 2024) (Ruling)
Neutral citation: [2024] KEHC 6553 (KLR)
Republic of Kenya
In the High Court at Nyamira
Criminal Revision E088 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 E297 of 2023 by Hon. B.M. Kimtai, Senior Resident Magistrate on 18th October 2023)
Ruling
1. The Applicant was convicted on his own plea of guilty for the offence of burglary contrary to Section 304 of the Penal Code. The trial court sentenced him to serve five (5) years’ imprisonment.
2. The Applicant has served 9 months and 3 weeks of his sentence. The Sentence Review Report filed on 3rd April 2024 by Probation Officer Daisy Lang’at recommends a non-custodial sentence.
3. I have however noted that the Applicant has also filed an appeal vide HCCRA E050 of 2023 in which the Respondent has already filed submissions.
4. 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