Case Metadata |
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| Case Number: | Criminal Appeal 68 of 1981 |
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| Parties: | Japheth Osunga Walome v Republic |
| Date Delivered: | 01 Dec 1981 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Kisumu |
| Case Action: | Judgment |
| Judge(s): | Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter |
| Citation: | Japheth Osunga Walome v Republic [1981] eKLR |
| Court Division: | Criminal |
| County: | Kisumu |
| Case Summary: | Walome v Republic Court of Appeal, at Kisumu December 1, 1981 Law, Miller & Potter JJA Criminal Appeal No 68 of 1981 Criminal practice and procedure - revisionary powers – exercise of principle on which discretion will be exercised by High Court and Court of Appeal - jurisdiction to entertain a matter which a High Court judge refused in the exercise of his discretionary powers. The appellant was charged and convicted for stealing one head of cattle contrary to Section 275 of the Penal Code and was sentenced to nine months imprisonment. He did not appeal against the conviction but instead applied to the High Court for bail pending appeal and for the case to be disposed of on revision. The High Court judge held that the conviction was sound as there is no patent omission or misdirection on the magistrates part and dismissed the appeal, giving rise to this present appeal. Held : 1. Revision is a discretionary remedy which if exercised, a right of appeal lies but where the judge declines to exercise this power there is no right of appeal. 2. An appellant had a right of appeal and cannot insist on revision especially where he is clearly proposing an appeal. 3. The High Court can exercise its’ revisionary jurisdiction sui motu, even if the aggrieved party has a right of appeal. Appeal dismissed. Cases Republic v Asid Singh [1957] EA 88 Statutes 1. Penal Code (Cap 63) Section 275 2. Criminal Procedure Code (Cap 75) Section 361(7) & 364
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| Case Outcome: | Appeal Dismissed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT KISUMU
( Coram: Law, Miller & Potter JJA )
CRIMINAL APPEAL NO. 68 OF 1981
BETWEEN
JAPHETH OSUNGA WALOME.....................................................APPELLANT
AND
REPUBLIC....................................................................................RESPONDENT
JUDGMENT
The appellant was convicted of stealing one head of cattle, contrary to Section 275 of the Penal Code, and was sentenced to 9 months imprisonment, by a District Magistrate at Siaya. He did not appeal to the High Court, but through an advocate he applied to the High Court asking:
a) for bail pending appeal, and
b) for the case to be disposed of on revision.
The learned judge (Scriven J) expressed the view that the conviction was sound, as he could see no “patent omission or misdirection on the magistrate’s part, such as to require revision, and he pointed out that if he were to revise the case, he would be bound to hold that the appellant was in effect (although charged under the wrong section) charged with stock theft, for which offence, the minimum statutory punishment is 7 years imprisonment. He dismissed the application. The appellant has appealed against that order. It should be noted that he has never lodged an appeal against his conviction. His complaint is that the judge should not have rejected his application for the case to be revised. In our opinion, the appellant’s appeal is based on a misconception.
Revision is a discretionary remedy. Where the revisionary jurisdiction is exercised, a right of appeal lies under Section 361(7) of the Criminal Procedure Code, but where the judge declines as was in this case to exercise that jurisdiction, then there is no right of appeal. A judge is not bound to accede to an application for revision, all the more so if he has reason to think that the applicant was proposing to appeal as was the case here, as he had included an application for bail pending appeal in his application for the case to be revised. Furthermore, subsection (5) of Section 364 of the Criminal Procedure Code, makes it clear that a party who has a right of appeal, like the appellant in this case, cannot insist on the case being entertained in revision, although the High Court is not of course precluded from exercising its revisionary jurisdiction sui motu if it thinks fit, even if the aggrieved party has a right of appeal, see Republic v Ajid Singh [1957] EA 822
We doubt if we have jurisdiction in this matter, although the learned judge purported to give leave to appeal. But even if we have jurisdiction, we see no merits in this appeal, which we order to be dismissed.
Dated and Delivered at Kisumu this 1st day of December 1981.
E.J.E.LAW
....................................
JUDGE OF APPEAL
C.H.E.MILLER
...................................
JUDGE OF APPEAL
K.D.POTTER
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the
original.
DEPUTY REGISTRAR
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