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Before me is an undated Notice of Motion which is basically an application for revision of sentence pursuant to Section 362 and 364 (1) (b) of the Criminal Procedure Code. According to the Applicant she was charged with the offence of murder and was sentenced to imprisonment for five years on 28th November, 2024. So far she has served ten months but she wishes to be released to serve the balance of the term on a non-custodial basis as she is a mother and her children are bound to suffer if she continues to be incarcerated.
The application is however vehemently opposed by the State. Miss Kaburu, learned Prosecution Counsel is for the view that the sentence, is in the first place very lenient considering the nature of the offence. She is also of the view that balancing the rights of the Applicant and those of the victim of the offence, it is in the interest of justice that the Applicant be let to serve the term in custody.
I have anxiously considered the application and in my finding it cannot succeed. Firstly, the Applicant has indicated that she was sentenced by Court No.2 at Machakos High Court, which means that the sentence is one of a court of concurrent jurisdiction. The revisionary powers of this court do not extend to sentences of a court of concurrent jurisdiction. It only extends to decisions order of courts lower than the High Court including Tribunals. This court cannot therefore reduce the sentence on the pretext that it is exercising its power of revision as provided in Section 361 or 364 (i) of the Criminal Procedure Code.
Secondly, even if it was the case that this sentence was by a lower court, Section 364 (5) makes it clear that one loses their right to revision if they had a right to appeal and did not appeal. That Section 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.”
Further, the Applicant could have come under Article 50(2) (q) of the Constitution but again such review should be to a higher court, in this case the Court of Appeal, the Applicant having been sentenced by a Judge of the High Court.
I think I have said enough to show that this application is not merited. The same is dismissed.
It is so ordered.
Ruling signed, dated and delivered virtually on this 6th day of November, 2025.
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Before me is an undated Notice of Motion which is basically an application for revision of sentence pursuant to Section 362 and 364 (1) (b) of the Criminal Procedure Code. According to the Applicant she was charged with the offence of murder and was sentenced to imprisonment for five years on 28th November, 2024. So far she has served ten months but she wishes to be released to serve the balance of the term on a non-custodial basis as she is a mother and her children are bound to suffer if she continues to be incarcerated.
The application is however vehemently opposed by the State. Miss Kaburu, learned Prosecution Counsel is for the view that the sentence, is in the first place very lenient considering the nature of the offence. She is also of the view that balancing the rights of the Applicant and those of the victim of the offence, it is in the interest of justice that the Applicant be let to serve the term in custody.
I have anxiously considered the application and in my finding it cannot succeed. Firstly, the Applicant has indicated that she was sentenced by Court No.2 at Machakos High Court, which means that the sentence is one of a court of concurrent jurisdiction. The revisionary powers of this court do not extend to sentences of a court of concurrent jurisdiction. It only extends to decisions order of courts lower than the High Court including Tribunals. This court cannot therefore reduce the sentence on the pretext that it is exercising its power of revision as provided in Section 361 or 364 (i) of the Criminal Procedure Code.
Secondly, even if it was the case that this sentence was by a lower court, Section 364 (5) makes it clear that one loses their right to revision if they had a right to appeal and did not appeal. That Section 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.”
Further, the Applicant could have come under Article 50(2) (q) of the Constitution but again such review should be to a higher court, in this case the Court of Appeal, the Applicant having been sentenced by a Judge of the High Court.
I think I have said enough to show that this application is not merited. The same is dismissed.
It is so ordered.
Ruling signed, dated and delivered virtually on this 6th day of November, 2025.
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