1. The Applicant herein, vide his undated notice of motion seeks an order for the review of his sentence, so that he be placed on a probation or community service orders sentence.
2. The Applicant grounds his application on the assertions that he is remorseful, has undergone rehabilitation and is the sole provider for his family.
3. In his supporting affidavit, the Applicant deposes that he was convicted and sentenced to serve 10 years’ imprisonment for the offence of sexual assault contrary to Section 5(1) as read with 5(2) of the Sexual Offences Act. He states that he does not challenge either the conviction or the sentence imposed, but respectfully seeks consideration for a non-custodial sentence in the form of probation or a community service order.
4. The Applicant’s application is opposed and to that end the State filed a replying affidavit sworn on 31st October, 2025 by Ms. Mercy Muema, Prosecution Counsel.
5. In her replying affidavit, Ms. Muema deposes that the Applicant was convicted of the offence of sexual assault in Winam Sexual Offence Case No. 74 of 2020 and sentenced to ten (10) years’ imprisonment, a sentence that was upheld on appeal in High Court Criminal Appeal No. E031 of 2022 – Ludubwi v Republic [2023] KEHC 331 (KLR), a copy of which she has annexed as MMM-1.
6. Counsel further deposes that the High Court, in its ruling delivered on 24th January, 2023, affirmed that the Applicant had not demonstrated any exceptional or unusual circumstances warranting interference with the sentence or the grant of bail, and confirmed the lawfulness of the conviction and sentence.
7. Ms. Muema contends that the present application is an abuse of court process because the grounds of hardship, remorse, and family dependence were already raised and fully considered during mitigation and the appeal process.
8. The learned Prosecution Counsel avers that the sentence imposed was legal, fair and proportionate to the gravity of the offence, and that the trial court acted within its discretion under the Sexual Offences Act.
9. Ms. Muema emphasizes that sexual offences are serious crimes against the person and public morality, that Parliament has prescribed minimum sentences to reflect their gravity, and that the courts consistently prioritize deterrence in such cases.
10. Counsel notes that the Applicant’s plea of remorse and claims of rehabilitation, while commendable, do not constitute new or compelling circumstances under Section 364 of the Criminal Procedure Code to justify a review of a lawful sentence. She further avers that the Applicant’s assertion that he is a sole breadwinner and that his family suffers due to his incarceration was already considered both at the trial and appellate stages and cannot now form a basis for resentencing.
11. Finally, Ms. Muema contends that the Applicant has failed to demonstrate any miscarriage of justice, illegality, or procedural irregularity and that maintaining the sentence serves the interests of justice, the protection of vulnerable victims, deterrence and public confidence in the criminal justice system.
12. The parties herein fully relied on their respective affidavits. I have carefully considered the notice of motion, the supporting affidavit of the Applicant and the replying affidavit of the State. I will proceed to set down the issues for determination.
13. The first issue for determination is whether the Applicant has demonstrated any new, exceptional or compelling circumstances that would justify the court in reviewing and altering the custodial sentence imposed for the offence of sexual assault.
14. The second issue is whether the Applicant’s assertions of remorse, rehabilitation and family dependence, specifically being the sole breadwinner, amount to sufficient grounds under Section 364 of the Criminal Procedure Code to warrant consideration of a non-custodial sentence such as probation or community service.
15. I will proceed to consider and address the two issues together.
16. Sections 361 – 364 of the Criminal Procedure Code provide for the circumstances under which a court may revise or alter an order of the subordinate court, including a sentence.
17. Notably, Section 364 allows a court to revise a sentence only where there is evidence of a miscarriage of justice, illegality or irregularity in the original sentencing process. The mere existence of hardship, remorse, rehabilitation or family dependence, in the absence of any procedural error or illegality, does not constitute grounds for revising a sentence.
18. In the present case, the Applicant does not challenge either the conviction or the legality of the original sentence. The only grounds raised – remorse, rehabilitation and the fact that he is a sole breadwinner – were fully considered during the mitigation process at the trial court and subsequently on appeal in High Court Criminal Appeal No. E031 of 2022 – Ludubwi v Republic [2023] KEHC 331 (KLR).
19. Since the Applicant has not demonstrated any new or exceptional circumstances beyond what was already considered by a court of competent jurisdiction, there is no legal basis under Sections 361 to 364 of the Criminal Procedure Code for this court to revise or alter the sentence. The Applicant’s claims, while laudable in a social or moral sense, do not amount grounds recognized by law.
20. Furthermore, the principle of concurrent jurisdiction is well established. Once a court of competent jurisdiction, in this case the High Court, has examined and addressed the issues relating to sentence on appeal, this court does not have the jurisdiction to re-open or interfere with that decision. To do otherwise would be to undermine the finality of judicial decisions.
21. In light of the foregoing, the court finds that the Applicant has not demonstrated any legal grounds that would entitle him to a revision or reduction of the custodial sentence. The assertions of remorse, rehabilitation, and family hardship, while acknowledged, cannot serve as a basis for altering a sentence lawfully imposed and affirmed by a court of concurrent jurisdiction.
22. In the circumstances, this Court lacks jurisdiction to revise or otherwise substitute the sentence imposed merely because the Applicant now seeks a non custodial outcome. The proper avenue for such relief is by way of a second appeal to the Court of Appeal, not through revision before this Court.
23. In the result, I find that this Court lacks jurisdiction to revise or interfere with the sentence imposed in the manner sought by the Applicant, as no illegality, impropriety or irregularity has been demonstrated.
24. Accordingly, the Applicant’s motion fails and is hereby dismissed for want of jurisdiction.
25. It is so ordered.
26. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The Applicant grounds his application on the assertions that he is remorseful, has undergone rehabilitation and is the sole provider for his family.
3. In his supporting affidavit, the Applicant deposes that he was convicted and sentenced to serve 10 years’ imprisonment for the offence of sexual assault contrary to Section 5(1) as read with 5(2) of the Sexual Offences Act. He states that he does not challenge either the conviction or the sentence imposed, but respectfully seeks consideration for a non-custodial sentence in the form of probation or a community service order.
4. The Applicant’s application is opposed and to that end the State filed a replying affidavit sworn on 31st October, 2025 by Ms. Mercy Muema, Prosecution Counsel.
5. In her replying affidavit, Ms. Muema deposes that the Applicant was convicted of the offence of sexual assault in Winam Sexual Offence Case No. 74 of 2020 and sentenced to ten (10) years’ imprisonment, a sentence that was upheld on appeal in High Court Criminal Appeal No. E031 of 2022 – Ludubwi v Republic [2023] KEHC 331 (KLR), a copy of which she has annexed as MMM-1.
6. Counsel further deposes that the High Court, in its ruling delivered on 24th January, 2023, affirmed that the Applicant had not demonstrated any exceptional or unusual circumstances warranting interference with the sentence or the grant of bail, and confirmed the lawfulness of the conviction and sentence.
7. Ms. Muema contends that the present application is an abuse of court process because the grounds of hardship, remorse, and family dependence were already raised and fully considered during mitigation and the appeal process.
8. The learned Prosecution Counsel avers that the sentence imposed was legal, fair and proportionate to the gravity of the offence, and that the trial court acted within its discretion under the Sexual Offences Act.
9. Ms. Muema emphasizes that sexual offences are serious crimes against the person and public morality, that Parliament has prescribed minimum sentences to reflect their gravity, and that the courts consistently prioritize deterrence in such cases.
10. Counsel notes that the Applicant’s plea of remorse and claims of rehabilitation, while commendable, do not constitute new or compelling circumstances under Section 364 of the Criminal Procedure Code to justify a review of a lawful sentence. She further avers that the Applicant’s assertion that he is a sole breadwinner and that his family suffers due to his incarceration was already considered both at the trial and appellate stages and cannot now form a basis for resentencing.
11. Finally, Ms. Muema contends that the Applicant has failed to demonstrate any miscarriage of justice, illegality, or procedural irregularity and that maintaining the sentence serves the interests of justice, the protection of vulnerable victims, deterrence and public confidence in the criminal justice system.
12. The parties herein fully relied on their respective affidavits. I have carefully considered the notice of motion, the supporting affidavit of the Applicant and the replying affidavit of the State. I will proceed to set down the issues for determination.
13. The first issue for determination is whether the Applicant has demonstrated any new, exceptional or compelling circumstances that would justify the court in reviewing and altering the custodial sentence imposed for the offence of sexual assault.
14. The second issue is whether the Applicant’s assertions of remorse, rehabilitation and family dependence, specifically being the sole breadwinner, amount to sufficient grounds under Section 364 of the Criminal Procedure Code to warrant consideration of a non-custodial sentence such as probation or community service.
15. I will proceed to consider and address the two issues together.
16. Sections 361 – 364 of the Criminal Procedure Code provide for the circumstances under which a court may revise or alter an order of the subordinate court, including a sentence.
17. Notably, Section 364 allows a court to revise a sentence only where there is evidence of a miscarriage of justice, illegality or irregularity in the original sentencing process. The mere existence of hardship, remorse, rehabilitation or family dependence, in the absence of any procedural error or illegality, does not constitute grounds for revising a sentence.
18. In the present case, the Applicant does not challenge either the conviction or the legality of the original sentence. The only grounds raised – remorse, rehabilitation and the fact that he is a sole breadwinner – were fully considered during the mitigation process at the trial court and subsequently on appeal in High Court Criminal Appeal No. E031 of 2022 – Ludubwi v Republic [2023] KEHC 331 (KLR).
19. Since the Applicant has not demonstrated any new or exceptional circumstances beyond what was already considered by a court of competent jurisdiction, there is no legal basis under Sections 361 to 364 of the Criminal Procedure Code for this court to revise or alter the sentence. The Applicant’s claims, while laudable in a social or moral sense, do not amount grounds recognized by law.
20. Furthermore, the principle of concurrent jurisdiction is well established. Once a court of competent jurisdiction, in this case the High Court, has examined and addressed the issues relating to sentence on appeal, this court does not have the jurisdiction to re-open or interfere with that decision. To do otherwise would be to undermine the finality of judicial decisions.
21. In light of the foregoing, the court finds that the Applicant has not demonstrated any legal grounds that would entitle him to a revision or reduction of the custodial sentence. The assertions of remorse, rehabilitation, and family hardship, while acknowledged, cannot serve as a basis for altering a sentence lawfully imposed and affirmed by a court of concurrent jurisdiction.
22. In the circumstances, this Court lacks jurisdiction to revise or otherwise substitute the sentence imposed merely because the Applicant now seeks a non custodial outcome. The proper avenue for such relief is by way of a second appeal to the Court of Appeal, not through revision before this Court.
23. In the result, I find that this Court lacks jurisdiction to revise or interfere with the sentence imposed in the manner sought by the Applicant, as no illegality, impropriety or irregularity has been demonstrated.
24. Accordingly, the Applicant’s motion fails and is hereby dismissed for want of jurisdiction.
25. It is so ordered.
26. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.