[2024] KEHC 609 (KLR)
The court held that it lacked jurisdiction to entertain the application for revision of sentence because the decision sought to be revised was made by a judge of concurrent jurisdiction. The powers of revision under Article 165 of the Constitution and Section 362 of the Criminal Procedure Code are confined to orders...
Source-derived case information.
- Citation
- [2024] KEHC 609 (KLR)
- Parties
- Applicant: Brian Obura Oduor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E070 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DO Ogembo
- Legal Topics
- Revision Jurisdiction, Sentencing Principles, Sexual Offences, Powers of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Obura Oduor
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to revise or review a sentence previously affirmed by a judge of concurrent jurisdiction.
- 2 Whether the applicant's mitigation and claims of rehabilitation warrant revision of sentence.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for revision of sentence because the decision sought to be revised was made by a judge of concurrent jurisdiction. The powers of revision under Article 165 of the Constitution and Section 362 of the Criminal Procedure Code are confined to orders or findings of subordinate courts, not those of the High Court itself or another judge of equal rank. Entertaining such an application would amount to the court sitting on appeal over its own decision, which is not permitted by law. Consequently, the application was dismissed for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The applicant’s application dated 3-8-2023 is wholly dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Oduor v Republic (Miscellaneous Criminal Application E070 of 2023) [2024] KEHC 609 (KLR) (30 January 2024) (Ruling)
Neutral citation: [2024] KEHC 609 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E070 of 2023
DO Ogembo, J
January 30, 2024
Between
Brian Obura Oduor
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein was charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act, No. 3 of 2006. This was vide, CM’s court (Siaya) Criminal Case No. 7 of 2019. On 6-2-2020, he was sentence to serve 15 years imprisonment. Aggrieved, he filed an appeal to the High court, being Criminal Appeal No. 5 of 2020. In a judgment delivered by the court on 16/12/2020, the appeal of the applicant was dismissed. The court in the process observed that the sentence of the applicant was lawful.
2. The applicant has now filed this application dated 3-8-2023 seeking revision of the said sentence.
3. In support of this application, the applicant has submitted that the sentence is harsh. He has also raised several factors of mitigation including that he is a first offender, and that he has been rehabilitated.
4. This court obtains its powers of revision from Article 165 of the Constitution and Section 362 of Criminal Procedure Code. And such powers of revision are limited to orders, findings or judgements of subordinate courts. This application, on the other hand, seeks that this court revises or reviews a decision of a Judge of concurrent jurisdiction.
5. This would be tantamount to this court sitting on appeal on its own decision.
6. As seen above, neither the Constitution nor any written law bestows on this court any such powers of revision of orders or findings of a court of concurrent jurisdiction. For want of jurisdiction, this application fails. I accordingly dismiss the applicant’s application dated 3-8-2023 wholly. It is so ordered.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 30TH DAY OF JANUARY, 2024D.O. OGEMBOJUDGE30. 1.2024Court:Ruling read in court in the presence of the Applicant and Ms. Mumu for State.D.O. OGEMBOJUDGE30. 1.2024