[2016] KEHC 4656 (KLR)
The court held that since the applicant was sentenced to seven years imprisonment and had the right to appeal but failed to do so, he cannot seek revision as a substitute for an appeal. Furthermore, the offence of stealing stock, for which the applicant was convicted, does not fall within the scope of offences...
Source-derived case information.
- Citation
- [2016] KEHC 4656 (KLR)
- Parties
- Applicant: Moses Oduori Were; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 289 of 2015
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- Application for revision dismissed.
- Judges
- AW Mwangi
- Legal Topics
- Stealing Stock, Sentencing, Community Service Orders, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Oduori Were
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the applicant is entitled to revision of sentence after failing to appeal the conviction and sentence.
- 2 Whether the offence of stealing stock qualifies for a Community Service Order under the relevant law.
Ratio Decidendi
The court held that since the applicant was sentenced to seven years imprisonment and had the right to appeal but failed to do so, he cannot seek revision as a substitute for an appeal. Furthermore, the offence of stealing stock, for which the applicant was convicted, does not fall within the scope of offences eligible for Community Service Orders, especially given the length of the sentence and the nature of the offence. The probation report was also unfavourable, and even if it had been favourable, the court would not have considered Community Service appropriate for this offence.
Court Disposition
Application for revision dismissed.
Orders
- The application for revision is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT KAKAMEGA.
MISC. CRIMINAL REVISION NO. 289 OF 2015.
MOSES ODUORI WERE...................................APPLICANT
VERSUS
REPUBLIC.........................RESPONDENT
(Being a Revision from the order of Butere Principal Magistrate's Court Criminal Case No.129 of 2012 by Hon. L.N. Kiniale , Resident Magistrate on 15th August, 2012. )
RULING ON REVISION
The applicant herein was charged with the offence of stealing stock contrary to section 278 of the Penal Code. After a full hearing, he was sentenced to serve seven (7) years imprisonment with effect from 15th August, 2012.
Section 364 (5) of the Criminal Procedure code provides that:-
“When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
I must point out that an accused person who has been sentenced to serve 7 years imprisonment has the option of filing an appeal. The applicant in this case seems not to have done so. I am also alive to the provisions of section 3 (1) of the Community Service Orders Act which provides instances where an applicant can be placed under Community Service Orders in the following words:-
“Where any person is convicted of an offence punishable with -
Imprisonment for a term not exceeding three years, with or without the option of a fine; or
Imprisonment for a term exceeding three years but which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate.”
The probation report on record is unfavourable to the applicant, even if it was favourable, I am of the considered view that the offence of stealing stock does not fall in the purview of offences that befit the placement of a person who has been charged and convicted of the said offence under Community Service.
DELIVERED, DATED and SIGNED at KAKAMEGAon this 30th day of May, 2016.
NJOKI MWANGI
JUDGE