Case ID:168099

Dennis Sagini Omari v Republic [2020] eKLR

Case Metadata

Case Number:

Revision E006 of 2020

Parties:

Dennis Sagini Omari v Republic

Date Delivered:

18 Dec 2020

Case Class:

Civil

Court:

High Court at Nyamira

Case Action:

Ruling

Judge(s):

Esther Nyambura Maina

Citation:

Dennis Sagini Omari v Republic [2020] eKLR

Case History:

From original Conviction and Sentence of Hon. C. W. Waswa (Mr.) – RM in the Original Nyamira Chief Magistrate’s Court Sexual Offence No. 13 of 2019

Court Division:

Civil

County:

Nyamira

History Docket No:

Sexual Offence No. 13 of 2019

History Magistrate:

Hon. C. W. Waswa (Mr.) – RM

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

REVISION NO. E006 OF 2020

DENNIS SAGINI OMARI...................APPLICANT

=VRS=

THE REPUBLIC...............................RESPONDENT

{From original Conviction and Sentence of Hon. C. W. Waswa (Mr.) – RM in the Original Nyamira Chief Magistrate’s

Court Sexual Offence No. 13 of 2019}

RULING

This file has been placed before me for revision vide a Notice of Motion dated 6

th

August 2020. The applicant who is a convicted prisoner prays that his application be allowed, conviction quashed and sentence set aside. In the body of the application he pleads for reduction of his sentence and requests to be supplied with proceedings and judgement to enable him explore more grounds for appeal. The application is supported by an affidavit (undated) in which the applicant deposes that he was sentenced to ten (10) years imprisonment for the offence of defilement; that he is not appealing against the conviction but is only asking for a review of the sentence. Attached to the application is a warrant of commitment showing that he was sentenced on 6

th

May 2019 in the Chief Magistrate’s Court at Nyamira.

I have considered the application carefully and I am of the view that firstly it is incompetent and not properly before this court and secondly that it has no merit. Upon conviction and sentence the accused person has a right of appeal. That right is enshrined in

Article 50 (2) (q)

of the

Constitution

which states: -

“(2) Every accused person has the right to a fair trial, which includes the right: -

(q) If convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”

That right is given expression in

Section 347 (1) (a)

of the

Criminal Procedure Code

which states: -

“347 (1) Save as in this part provided—

(a) a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; ……….”

Convictions and sentences for sexual offences are therefore appealable as of right. It is clear from

Section 347 (1) (a)

of the

Criminal Procedure Code

that a person who is convicted of an offence and who is aggrieved is expected to exercise that right of appeal first to the High Court and then to the Court of Appeal as provided under the law. A person who fails to exercise that right cannot come to this court for revision of a sentence lawfully passed by the trial court. Indeed,

Section 364 (5) of the Criminal Procedure Code

expressly prohibits that and states: -

“(5) 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.”

The applicant has attached a certificate to the effect that he has not filed any appeal in respect to his case. He is therefore by virtue of

Section 364 (5)

of the

Criminal Procedure Code

prevented from filing this application. For that reason, his application is not properly before this court and is incompetent.

Secondly, even were we to assume the power of revision vested in this court by

Section 362

of the

Criminal Procedure Code

is different from the right to a review by a higher court donated to a convicted person by

Article 50 (2) (q

) of the

Constitution

and that the applicant seeks to exercise that right under

Article 50 (2) (q)

of the

Constitution,

I would still find the application incompetent as no material has been placed before me that would enable me to review the sentence. No proceedings or judgement have been attached to the application and the notice of motion is therefore unsupported. It is also my finding that the reasons advanced that after the conviction and sentence

“I was totally confused and was unable to write an appeal in time as per the law (14 days) and that the applicant is now spiritually mentored and ready to lead a life of a role model within the society”

do not suffice to upset the sentence of the lower court. In regard to the delay in filing an appeal, the applicant had opportunity to apply for leave to appeal out of time and as for the ground that he has reformed that ought to be taken into account by the Prison authorities when considering remission.

In the upshot the application is found to be not only incompetent but also unmerited and it is dismissed.

E. N. MAINA - J

18/12/2020