[2023] KEHC 26293 (KLR)
The High Court lacks jurisdiction to revise a sentence where the applicant has already exercised the right of appeal and the appeal has been determined. The court is functus officio in such circumstances and cannot revisit the matter through revision. The applicant's recourse, if dissatisfied, lies either in seeking...
Source-derived case information.
- Citation
- [2023] KEHC 26293 (KLR)
- Parties
- Applicant: Tariasi Nyangares; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E008 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision After Appeal Dismissed
- Outcome
- application declined
- Judges
- KW Kiarie
- Legal Topics
- Revision Jurisdiction, Functus Officio, Appeal Rights, Power of Mercy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tariasi Nyangares
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision After Appeal Dismissed
Legal Issues
- 1 Whether the High Court has jurisdiction to revise a sentence after an appeal has been dismissed.
- 2 Whether the applicant can seek revision when the right of appeal was available and exercised.
- 3 Whether the court is functus officio after determination of the appeal.
Ratio Decidendi
The High Court lacks jurisdiction to revise a sentence where the applicant has already exercised the right of appeal and the appeal has been determined. The court is functus officio in such circumstances and cannot revisit the matter through revision. The applicant's recourse, if dissatisfied, lies either in seeking leave to appeal to the Court of Appeal out of time or in petitioning the President for mercy under Article 133 of the Constitution. Entertaining the revision would be irregular, unlawful, and would amount to usurping the powers of the President and sitting on appeal over a matter already concluded by the court.
Court Disposition
application declined
Orders
- The application for revision is declined.
Full Case Text
Judgment text and source record
21 paragraphs
Nyangares v Republic (Criminal Revision E008 of 2023) [2023] KEHC 26293 (KLR) (6 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26293 (KLR)
Republic of Kenya
In the High Court at Kisii
Criminal Revision E008 of 2023
KW Kiarie, J
December 6, 2023
Between
Tariasi Nyangares
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Criminal Case No.1133 of 2013 of the Senior Principal Magistrate’s Court at Ogembo by Hon. C.R.T. Ateya– Resident Magistrate)
Ruling
1. The Criminal Procedure Code provides the High Court with jurisdiction to revise criminal matters decided by lower courts under section 362 in the following terms:The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.Therefore, the court’s revision is limited to ensuring the correctness, legality, and propriety of any findings, sentences, or orders made by the subordinate court.
2. Section 364 (5) of the Criminal Procedure Code restricts the revisional jurisdiction in the following as follows: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.
3. In the instant case, the appellant had the right to appeal against the sentence that was imposed by the trial court on February 5th, 2015, which he did. This court (W.A. Okwany J.) dismissed the appeal in its entirety on May 26th, 2016. As far as this matter is concerned, this court is functus officio. If dissatisfied, the applicant ought to have moved to the Court of Appeal.
4. It will be irregular and unlawful for this court to purport to review the sentence. The applicant has two options; either to seek leave to file an appeal to the Court of Appeal out of time or to petition the president under article 133 of the Constitution which Provides:(1)On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—(a)granting a free or conditional pardon to a person convicted of an offence;(b)postponing the carrying out of a punishment, either for a specified or indefinite period;(c)substituting a less severe form of punishment; or(d)remitting all or part of a punishment.(2)There shall be an Advisory Committee on the Power of Mercy, comprising—(a)the Attorney-General;(b)the Cabinet Secretary responsible for correctional services;and(c)at least five other members as prescribed by an Act of Parliament, none of whom may be a State officer or in public service.(3)Parliament shall enact legislation to provide for—(a)the tenure of the members of the Advisory Committee;(b)the procedure of the Advisory Committee; and(c)criteria that shall be applied by the Advisory Committee in formulating its advice.(4)The advisory committee may take into account the views of the victims of the offence in respect of which it is considering making recommendations to the President.
5. If this court interferes with the sentence, it will be tantamount to usurpation of the powers of the president and sitting on appeal on a matter that this court is functus officio. The application is therefore declined.
DELIVERED AND SIGNED AT KISII THIS 6TH DAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE