Bor v Republic [2024] KEHC 5061 (KLR)

Bor v Republic (Criminal Revision E012 of 2023) [2024] KEHC 5061 (KLR) (9 May 2024) (Ruling)

Neutral citation: [2024] KEHC 5061 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Revision E012 of 2023

JK Sergon, J

May 9, 2024

Between

Denis Bor

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with the offence of stealing contrary to section 268 (1) as read with section 275 of the Penal Code. The applicant was convicted on his own plea of guilt and was on 27th June, 2022 sentenced to two (2) years imprisonment by Hon. E.W. Karani in Kericho CM’s Criminal Case No. E1490 of 2022 Republic v Denis Bor.

2. The applicant has moved this court beseeching it to exercise its supervisory power of Revision and set aside the order on sentence and substitute it with a fine. The Applicant stated that he is the sole breadwinner in a family of four school going children and has an ailing mother who depends on him.

3. Section 348 of the Criminal Procedure Code provides inter alia as follows:- “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.

4. The Applicant opted to file this Revision instead of challenging the Order on sentence by way of an Appeal. The Law does not permit a party who is entitled to challenge the order on conviction or sentence on Appeal to personally approach the Court for revision.

5. It would appear from the provision of Sections 362 and 364 of the Criminal Procedure Code that the Court may act suo moto or may be prompted by another person or body other than the convict to exercise its power of revision.

6. 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.”

7. 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…’’

8. 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 9TH DAY OF MAY, 2024. .........................J.K. SERGONJUDGE