[2023] KEHC 26292 (KLR)
The High Court declined to exercise its revisionary jurisdiction because the applicant had a right of appeal against the sentence imposed by the subordinate court but chose not to exercise it. Section 364(5) of the Criminal Procedure Code expressly prohibits the use of revision where an appeal lies and has not been...
Source-derived case information.
- Citation
- [2023] KEHC 26292 (KLR)
- Parties
- Applicant: Teresa Nyaboke Ogweno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 237 of 2023
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application declined
- Judges
- KW Kiarie
- Legal Topics
- Revision Jurisdiction, Appeal Rights, Sentencing Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Nyaboke Ogweno
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the High Court can entertain a criminal revision application where the applicant had a right of appeal but did not exercise it.
- 2 Whether the sentence imposed by the subordinate court was unlawful, justifying revision by the High Court.
- 3 Whether the applicant has alternative remedies apart from revision.
Ratio Decidendi
The High Court declined to exercise its revisionary jurisdiction because the applicant had a right of appeal against the sentence imposed by the subordinate court but chose not to exercise it. Section 364(5) of the Criminal Procedure Code expressly prohibits the use of revision where an appeal lies and has not been brought, unless the sentence is unlawful, which was not established in this case. The court emphasized that to interfere with the sentence in these circumstances would be irregular and would amount to usurping the powers of the President under Article 133 of the Constitution. The applicant was advised to either seek leave to appeal out of time or to petition the President for...
Court Disposition
application declined
Orders
- The application for revision is declined.
Full Case Text
Judgment text and source record
20 paragraphs
Ogweno v Republic (Criminal Revision 237 of 2023) [2023] KEHC 26292 (KLR) (5 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26292 (KLR)
Republic of Kenya
In the High Court at Kisii
Criminal Revision 237 of 2023
KW Kiarie, J
December 5, 2023
Between
Teresa Nyaboke Ogweno
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Criminal case NO. E1303 of 2023 of the Chief Magistrate’s Court at Kisii by Hon. C.A. Ocharo– Senior Principal 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.The court's revision is, therefore, 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 September 26th, 2023 but opted not to. She cannot therefore approach this court through an application for revision unless the sentence meted out was unlawful. This is not the case. 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 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.
4. If this court interferes with the sentence, it will be tantamount to usurpation of the powers of the president. It can only interfere with the sentence of a subordinate court, on appeal in appropriate cases. The application is therefore declined.
DELIVERED AND SIGNED AT KISII THIS 5THDAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE