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Court of AppealDismissedCriminal Appeal (unnumbered, Court of Appeal, Nakuru)

Kurgat v Republic (Criminal Appeal E016 of 2022) [2025] KECA 1534 (KLR)

Court of Appeal of Kenya
3 October 2025
JMJ. MativoMGM. GachokaGOG. V. Odunga
891 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that if you have already appealed a case and lost, you cannot revive it through a revision application.

What this practically means

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Executive summary

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The appellant was convicted on his own plea of guilty of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to fifteen years imprisonment by the Kericho Chief Magistrate's Court on 20th December 2019. His first appeal, Kericho High Court Criminal Appeal No. 42 of 2019, was dismissed on 9th July 2021. He then invoked the High Court's revisionary jurisdiction under sections 207, 362 and 364 of the Criminal Procedure Code, seeking revision, setting aside or quashing of the conviction and sentence. On 9th August 2022 the High Court declined, holding that the appellant should have sought leave to appeal out of time, since section 364(5) bars revision at the instance of a party who could have appealed but did not. The appellant appealed to the Court of Appeal, contending among other things that the Judge misdirected herself and contradicted her earlier decision on the right of appeal after a plea of guilty. The Court of Appeal framed a single issue: whether the High Court was properly seized of the revision application. It held that because the appellant had pleaded guilty, his appellate right was limited to the extent or legality of sentence, a right he in fact exercised; section 364(5) therefore expressly barred him from revisiting by way of revision a decision he had already appealed against, albeit unsuccessfully. Further, revision would have served no purpose while the decision disallowing the appeal stood. The Court found no merit in the appeal and dismissed it in a judgment dated 3rd October 2025 at Nakuru. No costs order was recorded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court was properly seized of the application for revision under sections 362 and 364 of the Criminal Procedure Code after the appellant had already appealed unsuccessfully against the same conviction and sentence
  2. 2.Whether an appellant who has failed on appeal may challenge the same trial court decision by way of revision

Key legal issues

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01

Whether the High Court had jurisdiction to entertain a revision application by a party who had already unsuccessfully appealed the same decision

Holding

The High Court was barred by section 364(5) of the Criminal Procedure Code from entertaining the revision; the application was rightly dismissed.

Reasoning

The appellant pleaded guilty and so had only a limited right of appeal as to the extent or legality of sentence, which he exercised by filing Kericho High Court Criminal Appeal No. 42 of 2019, which was dismissed. Section 364(5) expressly bars revision at the instance of a party who could have appealed and did appeal, albeit unsuccessfully. The High Court was therefore stripped of jurisdiction to revise the same conviction and sentence.

p. 2
02

Whether revision could achieve anything after the appeal had been disallowed

Holding

Revision would have been futile because the decision disallowing the appeal remained intact.

Reasoning

Even apart from the statutory bar, once the High Court had dismissed the appeal against the trial court's conviction and sentence, any revision of the trial court's decision would have been ineffective unless the decision disallowing the appeal were first set aside. The application for revision was therefore stillborn on this independent ground.

p. 2

Legal principles established

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  • Under section 364(5) of the Criminal Procedure Code, no proceedings by way of revision shall be entertained at the instance of a party who could have appealed and did appeal, albeit unsuccessfully; the High Court loses jurisdiction to revise a decision that has been subjected to appeal.
  • Where an appeal against a trial court decision has been disallowed, a revision of that trial court's decision serves no purpose so long as the decision disallowing the appeal remains intact.
  • An accused convicted on a plea of guilty has a limited right of appeal confined to the extent or legality of the sentence, under section 379(3) of the Criminal Procedure Code.

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority
MG
majority
GO
majority
On appeal from
High Court of Kenya at Kericho
Criminal Application (Revision) No. 51 of 2022 (arising from Kericho High Court Criminal Appeal No. 42 of 2019)
Jurisdiction invoked
First appeal to the Court of Appeal against a decision of the High Court exercising revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code

Relief refused

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Setting aside or varying the High Court's dismissal of the application for revision of conviction and sentence

The High Court was barred by section 364(5) of the Criminal Procedure Code from entertaining a revision application by a party who had already appealed, albeit unsuccessfully, and revision would have served no purpose while the decision disallowing the appeal stood

p. 2

Costs

No costs order was made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Section 364(5) of the Criminal Procedure Code expressly bars the appellant from seeking to review a decision which he not only ought to have appealed against but did appeal against, albeit unsuccessfully.
p. 2Statutory bar on revision where appeal was available and taken
the High Court was stripped of the jurisdiction to entertain the application for revision and the appellant’s application was rightly dismissed
p. 2Loss of revisionary jurisdiction
We find no merit in this appeal which we hereby dismiss.
p. 3Final orders and disposition

Issues in the judgment

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minor

The coram appears only in the signature block rather than a bench listing, and no appeal number is given for the present appeal in the judgment text.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kurgat v Republic (Criminal Appeal E016 of 2022) [2025] KECA 1534 (KLR)", Case Analysis (2025). Criminal Appeal (unnumbered, Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1534/eng@2025-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.