[2024] KEHC 6552 (KLR)
The court held that the applicant, having filed an appeal against the conviction and sentence, cannot simultaneously seek a review of the sentence by way of criminal revision. The law prohibits concurrent pursuit of both remedies in respect of the same decision. Since there is an active appeal pending before the...
Source-derived case information.
- Citation
- [2024] KEHC 6552 (KLR)
- Parties
- Applicant: Mesa Kebese Nyang’au; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E083 of 2024
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application dismissed
- Judges
- WA Okwany
- Legal Topics
- Sentence Review, Concurrent Proceedings, Assault Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mesa Kebese Nyang’au
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant can seek review of sentence while an appeal is pending on the same conviction and sentence.
- 2 Whether the application for sentence review is properly before the court.
Ratio Decidendi
The court held that the applicant, having filed an appeal against the conviction and sentence, cannot simultaneously seek a review of the sentence by way of criminal revision. The law prohibits concurrent pursuit of both remedies in respect of the same decision. Since there is an active appeal pending before the High Court, the application for revision is misconceived and must be dismissed. The applicant is to continue serving the remainder of his sentence in custody pending the outcome of the appeal.
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed.
- The applicant shall continue to serve the remainder of his sentence in custody pending determination of his appeal.
Full Case Text
Judgment text and source record
17 paragraphs
Nyang’au v Republic (Criminal Revision E083 of 2024) [2024] KEHC 6552 (KLR) (13 May 2024) (Ruling)
Neutral citation: [2024] KEHC 6552 (KLR)
Republic of Kenya
In the High Court at Nyamira
Criminal Revision E083 of 2024
WA Okwany, J
May 13, 2024
Between
Mesa Kebese Nyang’au
Applicant
and
Republic
Respondent
(rom the original Conviction and Sentence in the Chief Magistrates’ Court at Nyamira, Criminal Case No. MCCR 15 of 2020 by Hon. C.W. Waswa, Resident Magistrate on 27{{^th}} June 2023)
Ruling
1. The Applicant was convicted for the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code, Cap 63 Laws of Kenya. The trial court ordered him to compensate the complainant in the sum of Kshs. 120,000/= or serve 2 year’s imprisonment in default. The Applicant has served 9 months of his sentence. The Sentence Review Report filed on 3rd April 2024 by the Probation Officer Nelson Maroa indicates that the Applicant has 7 months to complete his sentence. At the same time, this Court notes that there is an active Appeal vide HCCRA E026 of 2023 before it. The Applicant cannot seek a review of his sentence and appeal the decision of the trial court concurrently. In the circumstances, I find that the present Application is misconceived and I therefore dismiss it. The Applicant shall continue to serve the remainder of his sentence in custody as he awaits the determination of his appeal.Orders accordingly.
DATED AND DELIVERED AT NYAMIRA ON THIS 13TH DAY OF MAY 2024. W. A. OKWANYJUDGE