1. The Applicant herein, vide the notice of motion dated 6th February, 2025 seeks an order for the review of his sentence, so that he serves the remainder of his sentence on probation or community service orders.
2. The grounds upon which the application is premised are that he is remorseful and has since been rehabilitated. The Applicant further states that he has served two thirds of his sentence.
3. The Respondent resists the Applicant’s motion and to that end filed a replying affidavit sworn on 1st January, 2026 by Ms. Mercy Mutheu Muema, Prosecution Counsel.
4. In her affidavit, Ms. Muema deposes that the application is unmerited as the sentence that the trial court imposed was lawful and that this court, has no jurisdiction to interfere with it.
5. Counsel states that upon being convicted on a charge of vandalism of energy installations infrastructure contrary to Section 169(1)(b) of the Energy Act No. 1 of 2019 in Winam Senior Principal Magistrate’s Court Criminal Case No. E327 of 2021, the Applicant was on 4th April, 2023 sentenced to serve 8 years imprisonment.
6. Counsel further deposes that the Applicant preferred an appeal to this court on both conviction and sentence, vide Kisumu High Court Criminal Appeal No. E022 of 2023, which was subsequently heard and dismissed in its entirety on 19th June, 2024. She has annexed to her affidavit a copy of the judgement. The contents of the affidavit as regards the presented history are not contested by the Applicant.
7. Counsel urges in her affidavit that this court has no jurisdiction to review, alter or vary the sentence of a Judge/Court of concurrent jurisdiction and seeks dismissal of the application.
8. Having considered the application, the affidavit in support thereof and the replying affidavit, I discern the single issue for determination is whether this Court has the jurisdiction to review, alter or vary the Applicant’s sentence after it has already been affirmed on appeal by a court of concurrent jurisdiction, and if so, whether the Applicant merits the grant of a non-custodial sentence such as probation or community service orders.
9. The Applicant seeks a review of his sentence on the grounds of remorse, rehabilitation and the fact that he has served a substantial portion of the custodial term imposed. However, the record shows that following his conviction and sentence by the trial court, he exercised his right of appeal, and both conviction and sentence were upheld in their entirety by this Court on appeal.
10. In those circumstances, this Court, sitting as presently constituted, cannot purport to sit on appeal over the decision of a court of concurrent jurisdiction. To do so would offend the well-established principle of finality in litigation and exceed the bounds of this Court’s jurisdiction.
11. The Applicant’s plea for leniency based on rehabilitation and time served, though commendable, is more appropriately directed to administrative mechanisms such as remission or the power of mercy, rather than judicial re-litigation of a sentence already affirmed on appeal.
12. Accordingly, the Court finds that it lacks jurisdiction to entertain the present application and, in any event, that the application is devoid of merit. The same is hereby dismissed.
13. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 16th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The grounds upon which the application is premised are that he is remorseful and has since been rehabilitated. The Applicant further states that he has served two thirds of his sentence.
3. The Respondent resists the Applicant’s motion and to that end filed a replying affidavit sworn on 1st January, 2026 by Ms. Mercy Mutheu Muema, Prosecution Counsel.
4. In her affidavit, Ms. Muema deposes that the application is unmerited as the sentence that the trial court imposed was lawful and that this court, has no jurisdiction to interfere with it.
5. Counsel states that upon being convicted on a charge of vandalism of energy installations infrastructure contrary to Section 169(1)(b) of the Energy Act No. 1 of 2019 in Winam Senior Principal Magistrate’s Court Criminal Case No. E327 of 2021, the Applicant was on 4th April, 2023 sentenced to serve 8 years imprisonment.
6. Counsel further deposes that the Applicant preferred an appeal to this court on both conviction and sentence, vide Kisumu High Court Criminal Appeal No. E022 of 2023, which was subsequently heard and dismissed in its entirety on 19th June, 2024. She has annexed to her affidavit a copy of the judgement. The contents of the affidavit as regards the presented history are not contested by the Applicant.
7. Counsel urges in her affidavit that this court has no jurisdiction to review, alter or vary the sentence of a Judge/Court of concurrent jurisdiction and seeks dismissal of the application.
8. Having considered the application, the affidavit in support thereof and the replying affidavit, I discern the single issue for determination is whether this Court has the jurisdiction to review, alter or vary the Applicant’s sentence after it has already been affirmed on appeal by a court of concurrent jurisdiction, and if so, whether the Applicant merits the grant of a non-custodial sentence such as probation or community service orders.
9. The Applicant seeks a review of his sentence on the grounds of remorse, rehabilitation and the fact that he has served a substantial portion of the custodial term imposed. However, the record shows that following his conviction and sentence by the trial court, he exercised his right of appeal, and both conviction and sentence were upheld in their entirety by this Court on appeal.
10. In those circumstances, this Court, sitting as presently constituted, cannot purport to sit on appeal over the decision of a court of concurrent jurisdiction. To do so would offend the well-established principle of finality in litigation and exceed the bounds of this Court’s jurisdiction.
11. The Applicant’s plea for leniency based on rehabilitation and time served, though commendable, is more appropriately directed to administrative mechanisms such as remission or the power of mercy, rather than judicial re-litigation of a sentence already affirmed on appeal.
12. Accordingly, the Court finds that it lacks jurisdiction to entertain the present application and, in any event, that the application is devoid of merit. The same is hereby dismissed.
13. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 16th day of April, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.