REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCR MISC.APPL. CASE NO.E089 OF 2024
IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE
IN THE MATTER OF: COURT OF APPEAL CR. APPEAL NO. E058 OF 2023 AT NAIROBI
IN THE MATTER OF: HIGH COURT CR. CASE NO. 158 OF 2017 AT MAKUENI
BETWEEN
ALEX MWENDO JOHN………………………………………..APPLICANT
VERSUS
REPUBLIC…………………………………………..…………RESPONDENT
RULING
(1) Alex Mwendo John was charged with murder in Makueni HCCRC 158/2017. He was found guilty of the offence vide Judgment delivered on 30/6/2023 (Hon Dulu J).
(2) On 18/5/2023 the applicant was sentenced to 18 years imprisonment.
(3) The applicant has brought Notice of Motion dated 11/11/2024 supported by his affidavit sworn on the same date. In the application he seeks;
“That this court do consider the period spent in Remand custody (6 years 4 months) by appreciating section 333(2) of the Criminal Procedure Code (CPC) that was not factored and review the 18 years imposed by the trial court (date of arrest 8/2/2017) and conviction dated 13/6/2023)”.
(4) The application is opposed by the Respondent vide their grounds of opposition dated 8/6/2025 to the effect that this court does not have jurisdiction as it has already pronounced itself on the matter of the sentence.
(5) Parties filed written submissions.
(6) The applicant submits in the manner of mitigation , and the period he was remanded and seeking a review of the sentence even to a non-custodial sentence.
(7) He relies on Benjamin Kahindi Changawa & Another Vs R [2020] eKLR Court of Appeal No. 99 of 2019 where the Court of Appeal reviewed the sentence of death to one of 10 years imprisonment from the date the accused persons were convicted by the High Court.
(8) For the State it is submitted this court lacks jurisdiction to Review its own sentence and the applicant ought to move to the Court of Appeal.
(9) I have carefully considered the record, and the submissions – the grounds of opposition, the applicant’s affidavit. The issue is whether the application has merit.
(10) To begin with the applicant began with a request that the court considers the period he spent in custody before he was convicted and sentenced. This he seeks under section 333(2) of the Criminal Procedure Code – claiming that that period was not considered by the court at sentencing. He then moved to asking this court to hear his mitigation and review his sentence.
(11) It is important to point out at the earliest that this court does not have the jurisdiction to do either of the two things the applicant wants.
(12) He has a pending appeal in the Court of Appeal.
(13) The power of supervisory revision lies in the superior court – and the right to seek the same in the applicant is to seek the same in the superior court; in this case – the Court of Appeal of as it is referred to by some inmates; Kenya Court.
(14) This is because the Judge who rendered the Judgment and sentence and this Judge exercise equal jurisdiction.
(15) In addition, the record speaks for itself. In the sentence it is stated – “… Taking into account all these factors and also bearing in mind that the accused person has been in custody since 2017, about 6 years now … I sentence the accused to eighteen (18 years) imprisonment.
(16) It is clear that the period he spent in custody prior to the sentence was taken into account.
(17) In that event I must find the application unmeritorious and decline it. The applicant has recourse in the Court of Appeal
(18) The file is accordingly closed.
RULING Dated, signed and delivered virtually on 22 nd May 2026.
MUMBUA T. MATHEKA
JUDGE
In the presence of :
- The Applicant.
- Mr. Musyoki for the Respondent.
- Chrispol Court Assistant
RULING HCCRC MISC. APPL. E089 OF 2024 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCR MISC.APPL. CASE NO.E089 OF 2024
IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE
IN THE MATTER OF: COURT OF APPEAL CR. APPEAL NO. E058 OF 2023 AT NAIROBI
IN THE MATTER OF: HIGH COURT CR. CASE NO. 158 OF 2017 AT MAKUENI
BETWEEN
ALEX MWENDO JOHN………………………………………..APPLICANT
VERSUS
REPUBLIC…………………………………………..…………RESPONDENT
RULING
(1) Alex Mwendo John was charged with murder in Makueni HCCRC 158/2017. He was found guilty of the offence vide Judgment delivered on 30/6/2023 (Hon Dulu J).
(2) On 18/5/2023 the applicant was sentenced to 18 years imprisonment.
(3) The applicant has brought Notice of Motion dated 11/11/2024 supported by his affidavit sworn on the same date. In the application he seeks;
“That this court do consider the period spent in Remand custody (6 years 4 months) by appreciating section 333(2) of the Criminal Procedure Code (CPC) that was not factored and review the 18 years imposed by the trial court (date of arrest 8/2/2017) and conviction dated 13/6/2023)”.
(4) The application is opposed by the Respondent vide their grounds of opposition dated 8/6/2025 to the effect that this court does not have jurisdiction as it has already pronounced itself on the matter of the sentence.
(5) Parties filed written submissions.
(6) The applicant submits in the manner of mitigation , and the period he was remanded and seeking a review of the sentence even to a non-custodial sentence.
(7) He relies on Benjamin Kahindi Changawa & Another Vs R [2020] eKLR Court of Appeal No. 99 of 2019 where the Court of Appeal reviewed the sentence of death to one of 10 years imprisonment from the date the accused persons were convicted by the High Court.
(8) For the State it is submitted this court lacks jurisdiction to Review its own sentence and the applicant ought to move to the Court of Appeal.
(9) I have carefully considered the record, and the submissions – the grounds of opposition, the applicant’s affidavit. The issue is whether the application has merit.
(10) To begin with the applicant began with a request that the court considers the period he spent in custody before he was convicted and sentenced. This he seeks under section 333(2) of the Criminal Procedure Code – claiming that that period was not considered by the court at sentencing. He then moved to asking this court to hear his mitigation and review his sentence.
(11) It is important to point out at the earliest that this court does not have the jurisdiction to do either of the two things the applicant wants.
(12) He has a pending appeal in the Court of Appeal.
(13) The power of supervisory revision lies in the superior court – and the right to seek the same in the applicant is to seek the same in the superior court; in this case – the Court of Appeal of as it is referred to by some inmates; Kenya Court.
(14) This is because the Judge who rendered the Judgment and sentence and this Judge exercise equal jurisdiction.
(15) In addition, the record speaks for itself. In the sentence it is stated – “… Taking into account all these factors and also bearing in mind that the accused person has been in custody since 2017, about 6 years now … I sentence the accused to eighteen (18 years) imprisonment.
(16) It is clear that the period he spent in custody prior to the sentence was taken into account.
(17) In that event I must find the application unmeritorious and decline it. The applicant has recourse in the Court of Appeal
(18) The file is accordingly closed.
RULING Dated, signed and delivered virtually on 22 nd May 2026.
MUMBUA T. MATHEKA
JUDGE
In the presence of :
- The Applicant.
- Mr. Musyoki for the Respondent.
- Chrispol Court Assistant
RULING HCCRC MISC. APPL. E089 OF 2024 Page 2 of 2