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RULING
(Revision of sentence from HCCR NO. 56 OF 2017 AT Mombasa High Court Criminal no.
56 of 2017 delivered on 14 th February 2023 by Hon lady Njoki Ndung’u (Judge)
The Notice of Motion dated 17 th September 2024 before this Court prepared and filed by the Applicant is brought under Section 397 of the Criminal Procedure Code. The Applicant through his tailor made application has moved the court for a review of his sentence passed on 15 th February 2023.
The Applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He was convicted and sentenced to 15 years’ imprisonment. In her sentence, the Judge, Lady Justice Njoki Mwangi directed that the period he was in custody during the trial to be commuted in the sentence, that is, from 13 th December 2017 to 27 th April 2018 in line with the provisions of Section 333 (2) of the Criminal Procedure Code.
I have considered the application and the affidavit in support of the same. The Respondent filed his submissions which I have also considered. The issue for consideration is whether the application has merit and what orders this court should make.
It is well settled in Kenya that the High Court cannot review or alter a sentence imposed or upheld by another judge of the same court. I find that this Honourable Court lacks jurisdiction to review or set aside the decision of another judge of concurrent jurisdiction. This principle is rooted in the doctrine of stare decisis and the hierarchy of courts which ensures consistency and finality in judicial decisions.
In the case of Joseph Nduvi Mbuvi vs Republic (2019) Eklr , the Court of Appeal reaffirmed that a judge of the High Court cannot sit on appeal or review the decision of another judge of the same court. The court emphasized that such a practice would undermine judicial comity and create uncertainty in the administration of justice.
In Republic vs Karisa Chengo & 2 Others (2017) Eklr , The Supreme Court of Kenya held that the High Court cannot revisit or alter a sentence imposed by another judge of the same court unless the decision is appealed to a higher court or reviewed under specific statutory provisions.
Therefore, the applicants request for a sentence review cannot be entertained by this Honourbale Court. Doing that would amount to sitting on appeal over a decision of a judge of equal standing. The applicant’s proper avenue for such a challenge would be an appeal to the Court of Appeal as provided for under Article 164 (3) of the Constitution of Kenya, 2010.
The application lacks merit and the same is dismissed.
DELIVERED, DATED and SIGNED at MOMBASA on this 27 th day of NOVEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
THE APPLICANT
MR NGIRI FOR RESPONDENT
BEBORA COURT ASSISTANT
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RULING
(Revision of sentence from HCCR NO. 56 OF 2017 AT Mombasa High Court Criminal no.
56 of 2017 delivered on 14 th February 2023 by Hon lady Njoki Ndung’u (Judge)
The Notice of Motion dated 17 th September 2024 before this Court prepared and filed by the Applicant is brought under Section 397 of the Criminal Procedure Code. The Applicant through his tailor made application has moved the court for a review of his sentence passed on 15 th February 2023.
The Applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He was convicted and sentenced to 15 years’ imprisonment. In her sentence, the Judge, Lady Justice Njoki Mwangi directed that the period he was in custody during the trial to be commuted in the sentence, that is, from 13 th December 2017 to 27 th April 2018 in line with the provisions of Section 333 (2) of the Criminal Procedure Code.
I have considered the application and the affidavit in support of the same. The Respondent filed his submissions which I have also considered. The issue for consideration is whether the application has merit and what orders this court should make.
It is well settled in Kenya that the High Court cannot review or alter a sentence imposed or upheld by another judge of the same court. I find that this Honourable Court lacks jurisdiction to review or set aside the decision of another judge of concurrent jurisdiction. This principle is rooted in the doctrine of stare decisis and the hierarchy of courts which ensures consistency and finality in judicial decisions.
In the case of Joseph Nduvi Mbuvi vs Republic (2019) Eklr , the Court of Appeal reaffirmed that a judge of the High Court cannot sit on appeal or review the decision of another judge of the same court. The court emphasized that such a practice would undermine judicial comity and create uncertainty in the administration of justice.
In Republic vs Karisa Chengo & 2 Others (2017) Eklr , The Supreme Court of Kenya held that the High Court cannot revisit or alter a sentence imposed by another judge of the same court unless the decision is appealed to a higher court or reviewed under specific statutory provisions.
Therefore, the applicants request for a sentence review cannot be entertained by this Honourbale Court. Doing that would amount to sitting on appeal over a decision of a judge of equal standing. The applicant’s proper avenue for such a challenge would be an appeal to the Court of Appeal as provided for under Article 164 (3) of the Constitution of Kenya, 2010.
The application lacks merit and the same is dismissed.
DELIVERED, DATED and SIGNED at MOMBASA on this 27 th day of NOVEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
THE APPLICANT
MR NGIRI FOR RESPONDENT
BEBORA COURT ASSISTANT
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