(Revision of sentence from HCCRA NO. 103 OF 2019 emanating from Mombasa
Magistrate Court Sexual Offences Case no. 26 of 2018 delivered on 11th July 2019 by
Hon C.A Ogweno (RM)
The Notice of Motion dated 25th November 2024 before this Court prepared and filed by the Applicant is brought under Section 364 of the Criminal Procedure Code. The Applicant through his tailor made application has moved the court for a review of his sentence passed on 19th September 2019 by Hon C.A Ogweno (RM).
The applicant was charged in the trial court with the offence of defilement contrary to section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. The particulars were that Erick Ong’era Ochoti on diverse dates between 16th and 17th September 2017 at Mikindani area in Jomvu Sub County within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of Delver Atieno a girl aged 15 years old.
In the alternative, the appellant was charged with the offence of committing an indescent act with a child contrary to section 11 (1) of the Sexual Offences Act. The applicant was convicted on the main charge and sentenced to 15 years’ imprisonment. He filed High Court Criminal Appeal no. E103 of 2019 which was dismissed on 28th October 2021 and Hon Lady Justice Ong’injo upheld the sentence of 15 years’ imprisonment.
The Applicant prays that the sentence be reviewed. I have considered the application and the affidavit in support of the same. The submissions filed by the Respondent and the Sentence review report as at the time of making this determination.
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. I find that this Honourable 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 applicant’s request for a sentence review cannot be entertained by this Honourbale 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.
The application lacks merit and the same is dismissed.
DELIVERED, DATED and SIGNED at MOMBASA on this 18th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
THE APPLICANT IN PERSON
MR NGIRI FOR THE RESPONDENT
BEBORA- CT ASSISTANT
Magistrate Court Sexual Offences Case no. 26 of 2018 delivered on 11th July 2019 by
Hon C.A Ogweno (RM)
The Notice of Motion dated 25th November 2024 before this Court prepared and filed by the Applicant is brought under Section 364 of the Criminal Procedure Code. The Applicant through his tailor made application has moved the court for a review of his sentence passed on 19th September 2019 by Hon C.A Ogweno (RM).
The applicant was charged in the trial court with the offence of defilement contrary to section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. The particulars were that Erick Ong’era Ochoti on diverse dates between 16th and 17th September 2017 at Mikindani area in Jomvu Sub County within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of Delver Atieno a girl aged 15 years old.
In the alternative, the appellant was charged with the offence of committing an indescent act with a child contrary to section 11 (1) of the Sexual Offences Act. The applicant was convicted on the main charge and sentenced to 15 years’ imprisonment. He filed High Court Criminal Appeal no. E103 of 2019 which was dismissed on 28th October 2021 and Hon Lady Justice Ong’injo upheld the sentence of 15 years’ imprisonment.
The Applicant prays that the sentence be reviewed. I have considered the application and the affidavit in support of the same. The submissions filed by the Respondent and the Sentence review report as at the time of making this determination.
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. I find that this Honourable 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 applicant’s request for a sentence review cannot be entertained by this Honourbale 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.
The application lacks merit and the same is dismissed.
DELIVERED, DATED and SIGNED at MOMBASA on this 18th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
THE APPLICANT IN PERSON
MR NGIRI FOR THE RESPONDENT
BEBORA- CT ASSISTANT