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RULING
(Revision of sentence emanating from Mombasa High Court Criminal Petition number 77 of 2018)
The homemade Notice of Motion dated 31 st January 2025 prepared by Daniel Kamau Kimemia seeks to move the court for a review of his sentence and be placed on probation terms.
The applicant was jointly charged with others for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He was convicted of the offence and sentenced to 40 years’ imprisonment by Lady Justice Odero in HCCR number 2 of 2008. He appealed to the Court of Appeal. His appeal on conviction was dismissed but the sentence was reviewed to death.
The applicant subsequently filed High Court Petition number 77 of 2018 seeking for a review of the Court of Appeal’s sentence wherein Justice Ogola reviewed the sentence from death to 35 years’ imprisonment. The applicant has now moved this court to review the 35 years sentence and consider him for non-custodial sentence.
I have considered the application filed, the affidavit in support and the submissions filed by the state. 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 after an appeal has been determined. I find that this Honorable 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 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.
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.
Therefore, the applicants request for a sentence review from 35 years in prison to a lesser sentence cannot be entertained by this Honorable 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.
I find that the Application dated 31 st January 2025 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; -
MR NGIRI /SIRIMA FOR THE STATE
THE APPLICANT IN PERSON
MS BEBORA COURT ASSISTANT
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RULING
(Revision of sentence emanating from Mombasa High Court Criminal Petition number 77 of 2018)
The homemade Notice of Motion dated 31 st January 2025 prepared by Daniel Kamau Kimemia seeks to move the court for a review of his sentence and be placed on probation terms.
The applicant was jointly charged with others for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He was convicted of the offence and sentenced to 40 years’ imprisonment by Lady Justice Odero in HCCR number 2 of 2008. He appealed to the Court of Appeal. His appeal on conviction was dismissed but the sentence was reviewed to death.
The applicant subsequently filed High Court Petition number 77 of 2018 seeking for a review of the Court of Appeal’s sentence wherein Justice Ogola reviewed the sentence from death to 35 years’ imprisonment. The applicant has now moved this court to review the 35 years sentence and consider him for non-custodial sentence.
I have considered the application filed, the affidavit in support and the submissions filed by the state. 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 after an appeal has been determined. I find that this Honorable 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 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.
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.
Therefore, the applicants request for a sentence review from 35 years in prison to a lesser sentence cannot be entertained by this Honorable 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.
I find that the Application dated 31 st January 2025 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; -
MR NGIRI /SIRIMA FOR THE STATE
THE APPLICANT IN PERSON
MS BEBORA COURT ASSISTANT
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