Japheth Osunga Walome v Republic [1981] KECA 18 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a High Court judge's refusal to revise a criminal case cannot be appealed, especially when the complainant had a right of appeal they never used.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies against a High Court judge's refusal to exercise revisionary jurisdiction
- 2.Whether the High Court judge erred in rejecting the application for revision
Key legal issues
#Whether an appeal lies from refusal of revision
No appeal lies where the judge declines to exercise revisionary jurisdiction; revision is discretionary and an appeal lies only under Section 361(7) where that jurisdiction has been exercised
The court held that revision is a discretionary remedy. A right of appeal arises only when the revisionary jurisdiction is actually exercised. Where the judge declines, as Scriven J did, there is no right of appeal. A judge is not bound to accede to a revision application, particularly where the applicant shows an intention to appeal, as here by including a bail-pending-appeal application.
Whether a party with a right of appeal may insist on revision
No - under Section 364(5) of the Criminal Procedure Code a party with a right of appeal cannot insist on revision, though the High Court may act suo motu
The court relied on Section 364(5) of the Criminal Procedure Code, and on Republic v Ajid Singh [1957] EA 822, to hold that the appellant, who had a right of appeal against his conviction but never lodged one, could not insist that the High Court entertain the matter in revision, although the court retained power to revise of its own motion.
Legal principles established
#- No right of appeal lies against a High Court judge's refusal to exercise revisionary jurisdiction
- A party with a right of appeal cannot insist on the case being entertained in revision
- The High Court may nonetheless exercise revisionary jurisdiction suo motu even where a right of appeal exists
Court orders
#- 1.The appeal was dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- Doubtful - the court stated: 'We doubt if we have jurisdiction in this matter, although the learned judge purported to give leave to appeal'
Relief refused
#Appeal against refusal to revise the case
Revision is discretionary and no right of appeal lies where a judge declines to exercise that jurisdiction; the appellant also had a right of appeal which he had not exercised
Costs
No costs order recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
which we order to be dismissed
Revision is a discretionary remedy.
We doubt if we have jurisdiction in this matter, although the learned judge purported to give leave to appeal.
A judge is not bound to accede to an application for revision
Issues in the judgment
#Case title, case number and neutral citation are not stated anywhere in the judgment as provided
The court expressed doubt about its own jurisdiction yet proceeded to dismiss the appeal, an internal tension left unresolved
No costs order is recorded in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japheth Osunga Walome v Republic [1981] KECA 18 (KLR)", Case Analysis (1981). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/18/eng@1981-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.