T
RULING.
1. The applicant was charged with the offence of being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 . The applicant was convicted and sentenced to five (5) years imprisonment by the Chief Magistrate’s Court at Kericho in Criminal Case No. E1090 of 2025 Republic v Emmanuel Omondi Anyul.
2. The applicant has moved this court by way of a Notice of Motion seeking a review of the sentence imposed by the trial court. He seeks a review of sentence to a non-custodial sentence or probation.
3. The Respondent opposes the application vide Grounds of Opposition dated 18 th June 2026 contending among other reason , that the application is misconceived and an abuse of the court process. That the sentence imposed by the trial court was lawful and the application offends the provisions of section 364(5) of the Criminal Procedure Code.
4. I have considered section 347(1)(a ) of the Criminal Procedure Code which grants a person convicted by a subordinate court the right of appeal to the High Court on a matter of fact as well as law. I have further considered section 348 of the Criminal Procedure Code which provides that; “No Appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the extent or legality of the sentence.”
5. The Applicant opted to file this revision instead of challenging the sentence by way of an Appeal.
6. Section 364(5) of the Criminal Procedure Code provides that ; “When an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the insistence of the party who could have appealed.”
7. The provision precludes a party who had a right of appeal from insisting upon revision as an alternative appellate process. It does not however extinguish this Court’s supervisory and revisionary jurisdiction under Article 165(6) and (7) of the Constitution and sections 362 and 364 of the Criminal Procedure Code. The Court may on its own motion, intervene where the record discloses manifest incorrectness, illegality, impropriety or irregularity.
8. In the case Martin Maruti Kituyi v Republic [2013] KEHC 2857 (KLR) , the court held that the very nature of revision as a discretionary remedy explains the policy underpinnings of section 364(5) of the Criminal Procedure Code ; that revision should not be a substitute for an appeal while recognizing that the High Court retains power to act suo motu where the integrity or legality of the subordinate court proceedings is called into question or are tainted by incorrectness, impropriety, illegality or irregularity.
9. I have examined the subordinate court record to determine whether it discloses any patent illegality, incorrectness, impropriety or irregularity warranting intervention. I have found none. The applicant has identified none and seeks only re-mitigation, leniency and substitution of the sentence. Those matters properly belong in an appeal against sentence. In any event, I have considered the circumstances of the case and the pre-sentence review report . The report is negative
10. I find the revision to be incompetent and misplaced .
Order.
11. I hereby proceed to dismiss the revision application. The offender to serve the sentence to its logical conclusion.
T.A ODERA
JUDGE
22.7.26
DATED, SIGNED AND DELIVERED THIS VIRTUALLY VIA TEAMS PLATFORM ON THIS 22 ND DAY OF JULY 2026 IN THE PRESENCE OF : .
APPLICANT
KIMARU FOR THE STATE
CA :BUSIENEI
RULING.
1. The applicant was charged with the offence of being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 . The applicant was convicted and sentenced to five (5) years imprisonment by the Chief Magistrate’s Court at Kericho in Criminal Case No. E1090 of 2025 Republic v Emmanuel Omondi Anyul.
2. The applicant has moved this court by way of a Notice of Motion seeking a review of the sentence imposed by the trial court. He seeks a review of sentence to a non-custodial sentence or probation.
3. The Respondent opposes the application vide Grounds of Opposition dated 18 th June 2026 contending among other reason , that the application is misconceived and an abuse of the court process. That the sentence imposed by the trial court was lawful and the application offends the provisions of section 364(5) of the Criminal Procedure Code.
4. I have considered section 347(1)(a ) of the Criminal Procedure Code which grants a person convicted by a subordinate court the right of appeal to the High Court on a matter of fact as well as law. I have further considered section 348 of the Criminal Procedure Code which provides that; “No Appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the extent or legality of the sentence.”
5. The Applicant opted to file this revision instead of challenging the sentence by way of an Appeal.
6. Section 364(5) of the Criminal Procedure Code provides that ; “When an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the insistence of the party who could have appealed.”
7. The provision precludes a party who had a right of appeal from insisting upon revision as an alternative appellate process. It does not however extinguish this Court’s supervisory and revisionary jurisdiction under Article 165(6) and (7) of the Constitution and sections 362 and 364 of the Criminal Procedure Code. The Court may on its own motion, intervene where the record discloses manifest incorrectness, illegality, impropriety or irregularity.
8. In the case Martin Maruti Kituyi v Republic [2013] KEHC 2857 (KLR) , the court held that the very nature of revision as a discretionary remedy explains the policy underpinnings of section 364(5) of the Criminal Procedure Code ; that revision should not be a substitute for an appeal while recognizing that the High Court retains power to act suo motu where the integrity or legality of the subordinate court proceedings is called into question or are tainted by incorrectness, impropriety, illegality or irregularity.
9. I have examined the subordinate court record to determine whether it discloses any patent illegality, incorrectness, impropriety or irregularity warranting intervention. I have found none. The applicant has identified none and seeks only re-mitigation, leniency and substitution of the sentence. Those matters properly belong in an appeal against sentence. In any event, I have considered the circumstances of the case and the pre-sentence review report . The report is negative
10. I find the revision to be incompetent and misplaced .
Order.
11. I hereby proceed to dismiss the revision application. The offender to serve the sentence to its logical conclusion.
T.A ODERA
JUDGE
22.7.26
DATED, SIGNED AND DELIVERED THIS VIRTUALLY VIA TEAMS PLATFORM ON THIS 22 ND DAY OF JULY 2026 IN THE PRESENCE OF : .
APPLICANT
KIMARU FOR THE STATE
CA :BUSIENEI