[2018] KEHC 2932 (KLR)
The High Court lacks jurisdiction to review its own judgment in criminal matters. The Criminal Procedure Code does not provide for such review, and the Constitution prescribes that appeals or reviews must be made to a higher court. The applicant's petition was therefore improperly before the court, as the correct...
Source-derived case information.
- Citation
- [2018] KEHC 2932 (KLR)
- Parties
- Applicant: Onesmus Shauri Chome; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 21 of 2016
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Jurisdiction of High Court, Review of Criminal Judgments, Appeals Process, Sexual Offences Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onesmus Shauri Chome
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Does the High Court have jurisdiction to review its own judgment in a criminal matter?
- 2 Was the appeal properly before the High Court or should it have been directed to the Court of Appeal?
- 3 Did the failure to prove the complainant's age and alleged non-compliance with Section 211 of the Criminal Procedure Code warrant review?
Ratio Decidendi
The High Court lacks jurisdiction to review its own judgment in criminal matters. The Criminal Procedure Code does not provide for such review, and the Constitution prescribes that appeals or reviews must be made to a higher court. The applicant's petition was therefore improperly before the court, as the correct forum for challenging the judgment was the Court of Appeal. Even if the petition were considered under Article 50(6) of the Constitution, it would fail for lack of new and compelling evidence. The court, therefore, dismissed the petition for want of jurisdiction and merit.
Court Disposition
petition dismissed
Orders
- The petition is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CONSTITUTIONAL PETITION NO. 21 OF 2016
ONESMUS SHAURI CHOME .......................... PETITIONER
VERSUS
REPUBLIC ....................................................... RESPONDENT
JUDGEMENT
1. The Petitioner, Onesmus Shauri Chome was charged, tried, convicted and sentenced to serve twenty years imprisonment for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, 2006 (SOA). His appeal to this Court was dismissed by Stella Mutuku, J in Garissa High Court Criminal Appeal No. 29 of 2012. The judgement rejecting his appeal was delivered on 13th February, 2013.
2. On 15th November, 2016 the Petitioner filed a notice of motion pursuant to Articles 23(1), 50(2)(q) and 165(3) of the Constitution seeking a review of my sister’s judgement on the grounds that the learned Judge confirmed his conviction even though the age of the complainant was not proved by way of the production of a birth certificate. The Petitioner also asserted that the learned Judge “erred in law by failing to consider non-compliance” of Section 211 of the Criminal Procedure Code by the trial magistrate.
3. The Petitioner filed lengthy submissions in support of his case. The submissions are geared towards demonstrating why the learned Judge ought to have allowed his appeal.
4. The Respondent opposed the application through written submissions. The Respondent’s case is that the learned Judge reached the correct decision. The Respondent also asserted that this court does not have jurisdiction to deal with the matter. It is the Respondent’s position that the Petitioner ought to have appealed to the Court of Appeal.
5. Does this Court have jurisdiction to review the judgement of a Court of coordinate jurisdiction in criminal matters? I have perused the submissions of the Petitioner and I do not find any statement on the question of jurisdiction.
6. The Criminal Procedure Code which governs trials in criminal cases in this country has no provision authorizing this court to review its judgement passed in exercise of its criminal jurisdiction.
7. The recourse open to a person who is aggrieved by the decision of this court is to appeal to the Court of Appeal. The appeal or review referred to in Article 50(2)(q) must be made to “a higher court as prescribed by law.”
8. This is not a petition under Article 50(6) of the Constitution. Even if it was such a petition, I would find the same unmerited as the Petitioner has not placed before this court new and compelling evidence to warrant a reopening of his case.
9. The Petitioner is asking me to exercise powers I do not have. He seeks to give me jurisdiction which neither the law nor the Constitution has granted me. I decline his invitation. He has approached the wrong forum. The only thing I can do in the circumstances of this case is to down my tools. I do so and dismiss the Petitioner’s petition.
Dated, signed and delivered at Malindi this 25th day of October, 2018.
W. KORIR,
JUDGE OF THE HIGH COURT