[2015] KEHC 776 (KLR)
The High Court lacks jurisdiction under revision proceedings to overturn an acquittal or order a retrial, as Section 364(4) of the Criminal Procedure Code expressly prohibits converting an acquittal into a conviction. The proper recourse for a dissatisfied party is to file an appeal, where the High Court has broader...
Source-derived case information.
- Citation
- [2015] KEHC 776 (KLR)
- Parties
- Applicant: Republic; Respondent: James Achoki Mboga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 220 of 2015
- Procedural Posture
- Criminal Revision Application / Ruling
- Outcome
- request for revision dismissed
- Judges
- AW Macharia
- Legal Topics
- Criminal Revision, Acquittal Procedure, Powers of High Court, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
James Achoki Mboga
Respondent
Procedural Posture
Criminal Revision Application / Ruling
Legal Issues
- 1 Whether the acquittal of the accused was illegal due to reliance on a wrong provision of law.
- 2 Whether the complainant was denied an opportunity to give evidence.
- 3 Whether the High Court has power on revision to convert an acquittal into a conviction or order a retrial.
Ratio Decidendi
The High Court lacks jurisdiction under revision proceedings to overturn an acquittal or order a retrial, as Section 364(4) of the Criminal Procedure Code expressly prohibits converting an acquittal into a conviction. The proper recourse for a dissatisfied party is to file an appeal, where the High Court has broader powers, including ordering a retrial or rehearing under Section 354(3)(c). Since the complainant was represented by the Office of the Director of Public Prosecutions, it is within the DPP's mandate to appeal or seek leave to appeal out of time. The request for revision is therefore dismissed as the court cannot grant the relief sought through revision.
Court Disposition
request for revision dismissed
Orders
- The request for revision is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION APPLICATION NO. 220 OF 2015
REPUBLIC......................…......……………….......…..…………APPLICANT
VERSUS
JAMES ACHOKI MBOGA.....…………………….......….…...... RESPONDENT
RULING
The file is before this court pursuant to Section 362 of the Criminal Procedure Code with a view to the court satisfying itself as to the correctness, legality or propriety of the finding of the learned trial magistrate’s court in the Chief Magistrate’s Court Nairobi Criminal Case No. 568 of 2012 in which the accused therein was acquitted without hearing the evidence of the prosecution witnesses.
The request for revision is contained in a letter dated 27th October, 2015, by M/S Mong’are Bw’Okong’o & Associates, Advocates on behalf of the complainant in the criminal trial. The grounds raised therein are as follows:
The acquittal of the accused was illegal having been based on a wrong provision of law.
The complainant was not accorded a chance to give evidence.
The complainant will suffer irreparable damage if the matter does not go to full hearing.
Under Section 364(4) of the Criminal Procedure Code:
“Nothing in this Section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.”
The provision deals with powers of the High Court on revision. That implies that where an accused person has been lawfully acquitted, the only recourse to a discontented party is in an appeal. Under Section 354(3) (c) of the Criminal Procedure Code on appeal, the High Court is conferred with powers to order that a trial be opened and witnesses be called in support of either party’s case. The said Section provides as follows:
“in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of re-hearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as the High Court may think fit.”
The complainant was properly represented by a prosecutor from the Office of the Director of Public Prosecutions (D.P.P). He is the person conferred with the powers to appeal on his behalf. He is also at liberty to apply for leave to appeal out of time.
In the result, the request for revision is dismissed.
DATEDand SIGNEDthis5thday of November, 2015.
G. W. NGENYE – MACHARIA
JUDGE