[2024] KEHC 2944 (KLR)
The court held that the applicant, having pleaded guilty and been sentenced, had a right of appeal as to the extent or legality of the sentence under section 348 of the Criminal Procedure Code. However, instead of appealing, the applicant sought revision. Section 364(5) of the Criminal Procedure Code expressly bars...
Source-derived case information.
- Citation
- [2024] KEHC 2944 (KLR)
- Parties
- Applicant: Mike Rotich; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E018 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Application for revision struck out as incompetent.
- Judges
- JK Sergon
- Legal Topics
- Revision Jurisdiction, Plea of Guilty, Sentence Legality, Appeal Vs Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mike Rotich
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court can entertain a revision application by a convict who pleaded guilty and was sentenced, where an appeal lies but was not filed.
- 2 Whether the applicant's approach to the court for revision is barred by section 364(5) of the Criminal Procedure Code.
Ratio Decidendi
The court held that the applicant, having pleaded guilty and been sentenced, had a right of appeal as to the extent or legality of the sentence under section 348 of the Criminal Procedure Code. However, instead of appealing, the applicant sought revision. Section 364(5) of the Criminal Procedure Code expressly bars revision proceedings at the instance of a party who could have appealed but did not. The court found that the applicant's application for revision was incompetent and could not be entertained, as revision is not a substitute for an appeal and is only available where no appeal lies or where the court acts suo moto or is prompted by a person or body other than the convict....
Court Disposition
Application for revision struck out as incompetent.
Orders
- The revision application is struck out.
Full Case Text
Judgment text and source record
20 paragraphs
Rotich v Republic (Criminal Revision E018 of 2024) [2024] KEHC 2944 (KLR) (14 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2944 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Revision E018 of 2024
JK Sergon, J
March 14, 2024
Between
Mike Rotich
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with the offence of selling alcoholic drinks without license contrary to section 27 (1) (b) as read with section 62 of the Alcoholic Drinks Control Act, No 4 of 2010. The applicant was convicted on his own plea of guilt and on 25th January, 2024 sentenced to six (6) months imprisonment by Hon. Japheth Bii (SRM) in Kericho Criminal Case No E199 of 2024 Republic v Mike Rotich.
2. The applicant has moved this court pursuant to the provisions of Sections 362, 364 and 367 of the Criminal Procedure Code CAP 75 Laws of Kenya urging this court to quash and set aside the order on sentence and give him a reduced sentence. The Applicant stated that the sentence meted out was harsh and excessive. The Applicant further stated that he has a young family that fully depends on him.
3. I have considered section 348 of the Criminal Procedure Code which provides that; “No Appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the extent or legality of the sentence.” It is clear from the above quoted excerpt that the Applicant has a right of Appeal as against the sentence. The Applicant opted to file this Revision instead of challenging the Order on sentence by way of an Appeal. The Law does not pursuit a party who is entitled to challenge the order on conviction or sentence on Appeal to personally approach the Court for revision. It would appear from the provision of Sections 362 and 364 of the Criminal Procedure Code that the Court may act suo moto and may be prompted by another person or body other than the convict to exercise its power of revision. Section 364(5) of the Criminal Procedure Code provides that; “When an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the instant of the party who could have appealed.”
4. In the case Martin Mavuti Kituyi v Republic HCCR. Revision No 27 of 2013 the court rendered itself as follows; “… the very nature of revision as a discretionary remedy explains the policy underpinnings of Section 364(5) of the Criminal Procedure Code; that revision should not be a substitute for an appeal whatsoever or insisted upon by a party who has not filed an Appeal where one was provided for. Revision primarily serves to put right instances where a finding, sentence, order or proceedings of a lower court are tainted by incorrectness, impropriety, illegality or irregularity…’’
5. Having personally approached this court to prompt this court to exercise its supervisory power of revision, the applicant breached the Provisions of Section 364 (5) of the Criminal Procedure Code. I find the revision to be incompetently before this court. The same cannot be entertained by this court. I hereby issue an order striking out the revision.
DATED, SIGNED AND DELIVERED THIS 14TH DAY OF MARCH, 2024………………………J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiApplicant – Present in Person