[2018] KEHC 2446 (KLR)
The High Court determined that it lacked jurisdiction to entertain the applicant's request for revision because the matter had already been determined on appeal by the same court. The court's revisionary powers under section 362 of the Criminal Procedure Code are limited to correcting errors in proceedings from the...
Source-derived case information.
- Citation
- [2018] KEHC 2446 (KLR)
- Parties
- Applicant: Osman Mohamed Balagha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 12 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Revision After Dismissal of Appeal
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Revision Jurisdiction, Terrorism Offences, Criminal Appeals, Sentencing, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Osman Mohamed Balagha
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Revision After Dismissal of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to revise its own decision after an appeal has been determined.
- 2 Whether the applicant's complaints regarding evidence and sentence can be addressed through revision under Article 50 of the Constitution.
Ratio Decidendi
The High Court determined that it lacked jurisdiction to entertain the applicant's request for revision because the matter had already been determined on appeal by the same court. The court's revisionary powers under section 362 of the Criminal Procedure Code are limited to correcting errors in proceedings from the magistrate’s court and do not extend to reviewing its own appellate decisions. The applicant's reliance on Article 50 of the Constitution was misplaced, as it does not provide a basis for the High Court to revise its own judgments. The proper recourse for the applicant, if dissatisfied with the High Court's appellate decision, is to approach the Court of Appeal.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 12 OF 2018
OSMAN MOHAMED BALAGHA.........................................APPLICANT
VERSUS
REPUBLIC..............................................................................DEFENDANT
RULING
1. In this matter Osman Mohamed Balagha was charged in Garissa Chief Magistrate Criminal Case No. 393 of 2015. He was tried for being in possession of an article for the use instigating commission of a terrorist act contrary to section 30 of the Prevention of Terrorism Act No. 30 of 2012. He was convicted and sentenced to ten (10) years imprisonment.
2. He appealed to the High Court through Garissa Criminal Appeal No. 30 of 2017. In a judgment delivered on 4th May 2018, the appeal was dismissed and the conviction and sentence of the trial court was upheld.
3. He has now come again to this court at Garissa seeking for revision and relying on Article 50 (2) (6) of the Constitution.
4. His complaints relates to adequacy of evidence of witnesses as well as his sentence. He also filed written submissions.
5. When he appeared before this court, he relied on his written submissions and elected not to say anything orally except to state that at the trial he was not given witness statements though he requested for them.
6. The learned Principal Prosecuting Counsel Mr. Okemwa submitted that the applicant has approached this court wrongly. That he should have gone for appeal rather than come to this court.
7. Indeed, this court does not have revision powers as requested by the applicant under Article 50 of the Constitution of Kenya 2010. This court has revision powers under section 362 of the Criminal Procedure Code (Cap. 75) but only relating to proceedings conducted by the magistrate’s court in order to correct errors on the face of the record.
8. This matter has already been determined in this court on appeal through a judgement delivered on 4th May 2018. This court therefore does not have jurisdiction to entertain the request of the applicant. He has come to this court but the court does not have jurisdiction to entertain his application as it cannot review its own decision. He is better advised to approach the Court of Appeal on appeal if he is not satisfied with the decision of this court in dismissing his appeal.
9. The application herein is thus dismissed.
Dated and delivered at Garissa this 13th November, 2018.
..........................
George Dulu
JUDGE