[2024] KEHC 4974 (KLR)
The court held that the applicants, having been convicted and sentenced by a subordinate court, had a right of appeal against the sentence. Since they did not file an appeal but instead personally approached the High Court for revision, their application was incompetent under Section 364(5) of the Criminal Procedure...
Source-derived case information.
- Citation
- [2024] KEHC 4974 (KLR)
- Parties
- Applicant: Charles Kipkurui Ngetich; Applicant: Francis Kiplangat Ngetich; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E119 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Application struck out as incompetent.
- Judges
- JK Sergon
- Legal Topics
- Revision Jurisdiction, Sentencing Principles, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kipkurui Ngetich
Applicant
Francis Kiplangat Ngetich
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court can entertain a revision application brought personally by convicts where an appeal lies but has not been filed.
- 2 Whether the applicants' request for substitution of a custodial sentence with a non-custodial sentence is properly before the court.
Ratio Decidendi
The court held that the applicants, having been convicted and sentenced by a subordinate court, had a right of appeal against the sentence. Since they did not file an appeal but instead personally approached the High Court for revision, their application was incompetent under Section 364(5) of the Criminal Procedure Code. The law expressly bars revision proceedings at the instance of a party who could have appealed but did not. The court emphasized that revision is not a substitute for appeal and is only available to correct clear illegality, impropriety, or irregularity, none of which was demonstrated in this case. Consequently, the revision application was struck out for being...
Court Disposition
Application struck out as incompetent.
Orders
- The revision application is struck out for being incompetently before the court.
Full Case Text
Judgment text and source record
25 paragraphs
Ngetich & another v Republic (Criminal Revision E119 of 2023) [2024] KEHC 4974 (KLR) (9 May 2024) (Revision)
Neutral citation: [2024] KEHC 4974 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Revision E119 of 2023
JK Sergon, J
May 9, 2024
Between
Charles Kipkurui Ngetich
1st Applicant
Francis Kiplangat Ngetich
2nd Applicant
and
Republic
Respondent
Revision
1. The applicants were charged with the offence of threatening to kill contrary to section 223 (1) of the Penal Code. The matter proceeded for trial, the applicants were convicted of the said offence and were on 27th November, 2023 sentenced to a fine of Kshs. 250,000/= in default to serve one (1) year imprisonment by Hon. J.M. Munguti vide Kericho CM’s Criminal Case No. E1233 of 2022 Republic v Charles Kipkurui Ngetich & Francis Kiplangat Ngetich.
2. The applicants have moved this court whereof they sought to have the on sentence set aside and be substituted with a non-custodial sentence.
3. The Applicants stated that the sentence meted out was harsh and excessive in the circumstances and that they were not given the option of a fine or non custodial sentence. The 1st applicant stated that he was remorseful and a first time offender, who is elderly. He also cited medical grounds to wit the fact that he was unable to pass urine hence requires medical attention.
4. The 2nd applicant on the other hand stated that he was remorseful and a first time offender, he stated that he had a young family and is the sole breadwinner.
5. I have considered section 347 (1) (a) of the Criminal Procedure Code which provides that;“ a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court ” The Law does not allow a party who is entitled to challenge the order on conviction or sentence on appeal to personally approach the Court for revision.
6. It would appear from the provision of Sections 362 and 364 of the Criminal Procedure Code that the Court may act suo moto or may be prompted by another person or body other than the convict to exercise its power of revision. 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 proceedings by way of revision shall be entertained at the instant of the party who could have appealed.”
7. In the case Martin Mavuti Kituyi v Republic HCCR. Revision No. 27 of 2013 the court rendered itself as follows;“… the very nature of revision as a discretionary remedy explains the policy underpinnings of Section 364 (5) of the Criminal Procedure Code; that revision should not be a substitute for an appeal whatsoever or insisted upon by a party who has not filed an Appeal where one was provided for. Revision primarily serves to put right instances where a finding, sentence, order or proceedings of a lower court are tainted by incorrectness, impropriety, illegality or irregularity…’’
8. Having personally approached this court to prompt this court to exercise its supervisory power of revision, the applicants have breached the Provisions of Section 364 (5) of the Criminal Procedure Code. I find the revision to be incompetently before this court. The same cannot be entertained by this court. I hereby issue an order striking out the revision.
DATED, SIGNED AND DELIVERED THIS 9TH DAY OF MAY, 2024J.K. SERGON......................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR