[2020] KEHC 1795 (KLR)
The court held that Section 364(5) of the Criminal Procedure Code bars a party from seeking revision where an appeal lies and has not been brought. Since the applicant had the right to appeal the lower court's finding that he had a case to answer, he could not instead seek revision. The application for revision was...
Source-derived case information.
- Citation
- [2020] KEHC 1795 (KLR)
- Parties
- Applicant: Wilfred Kipchumba Birgen; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 18 of 2019
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application dismissed
- Judges
- AM Githinji
- Legal Topics
- Criminal Revision, Traffic Offences, Careless Driving, Procedural Bar, Appeal Vs Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Kipchumba Birgen
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant can seek revision of a lower court's finding of a case to answer when an appeal lies from such finding.
- 2 Whether the charge sheet was fatally defective due to amendments in the Traffic Act.
Ratio Decidendi
The court held that Section 364(5) of the Criminal Procedure Code bars a party from seeking revision where an appeal lies and has not been brought. Since the applicant had the right to appeal the lower court's finding that he had a case to answer, he could not instead seek revision. The application for revision was therefore incompetent and could not be entertained. The court dismissed the application and referred the matter back to the trial court for hearing.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
- The matter is referred to the trial court for hearing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CRIMINAL REVISION CASE NO. 18 OF 2019
WILFRED KIPCHUMBA BIRGEN..................................................................APPLICANT
VERSUS
REPUBLIC.......................................................................................................RESPONDENT
RULING
The ruling herein regards an application for review of a lower court finding that the applicant has a case to answer in a traffic charge of careless driving contrary to Section 49 (1) (a) of the Traffic Amendment Act No. 2 of 2012, Cap 403 Laws of Kenya.
The application was brought under Certificate of Urgency and the prayer to this court is to review the order of the lower court and find that the applicant has no case to answer and subsequently acquit him. The main ground upon which the application is founded is that the charge sheet is fatally defective. The applicant submitted that the Traffic Act was amended by the Traffic (Amendment) No. 2, which did away with the offence ofcareless driving and substituted the same with the offence of driving without due care and attention, under Section 49 (1) (a) and (b).
The prosecution opposed the application on the ground that the raised issued are for the appeal and not revision.
I have weighed the position of each side on the issue raised. Section 364 (5) of the Criminal Procedure Code is clear in that 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. It is therefore vivid that for an appealable issue, a party who has the right of appeal cannot proceed by way of a review, but an appeal. The applicant herein by coming to this court by way of a review, offends the said provision and the said application shouldn’t be entertained. It lacks merit and it is hereby dismissed. The matter is referred to the trial court for hearing.
S. M GITHINJI
JUDGE
DATED, SIGNEDandDELIVEREDatELDORETthis8thday of October, 2020.
In the presence of:-
Accused (Absent)
Mr. Oyalo for applicant
Ms Limo for respondent
Ms Glady – Court assistant