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 assertion that he has demonstrated genuine remorse for his past actions and has undergone significant rehabilitation. He further contends that he is advanced in age and that the prison environment is no longer suitable or conducive to his physical and mental well-being. Additionally, he states that he is the sole breadwinner for his family and his continued incarceration places a substantial hardship on their welfare.
3. In his supporting affidavit, the Applicant reiterates the grounds upon which his application is based, emphasizing his genuine remorse, rehabilitation, advanced age, the unsuitability of the prison environment and his role as the sole provider for his family.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant was convicted and sentenced to two and a half (2½) years’ imprisonment in original case file No. E173/2025 at the Chief Magistrate’s Court, Kisumu. She further deposes that the Applicant seeks a review or reduction of his sentence to a non-custodial option, such as probation or a community service order, citing factors including remorse, advanced age, being a sole breadwinner and suitability for non-custodial measures.
5. Ms. Muema notes that there is no record of the Applicant having filed a formal appeal against his conviction or sentence, nor any prior application for revision in this matter. She states that the sentence imposed by the trial court was lawful, moderate and proportionate to the seriousness of the offence and that the Applicant has not demonstrated that the sentence is illegal or excessive in principle.
6. The learned Prosecution Counsel emphasizes that the High Court’s revisionary powers under Section 364 of the Criminal Procedure Code are intended to correct patent errors of law or material procedural irregularities and are not a substitute for an appeal, which the Applicant failed to file within the statutory period.
7. Ms. Muema further deposes that the personal factors relied upon by the Applicant, including remorse, age, character reform and being a sole breadwinner, relate to mercy and rehabilitation, and the proper avenues for such considerations are the Power of Mercy Committee under Article 133 of the Constitution or the parole system, rather than review/revision of a lawful sentence.
8. Counsel concludes that the Application lacks a legal or jurisdictional basis for the Court to interfere with the Applicant’s lawful sentence and respectfully prays that the Court dismiss the Application in its entirety.
9. The parties herein relied on their respective affidavits in addressing the application.
10. Having considered the application, the affidavits filed by the parties and the respective positions taken by the Applicant and the Respondent, two issues arise for determination.
11. The first is whether the Applicant, having failed to file a formal appeal against his conviction or sentence, can legitimately invoke the High Court’s revisionary powers under Sections 361 to 364 of the Criminal Procedure Code to seek a review or reduction of his sentence.
12. The second issue is whether the personal factors advanced by the Applicant, namely, genuine remorse, rehabilitation, advanced age, being the sole breadwinner and the unsuitability of the prison environment, constitute sufficient legal or jurisdictional grounds for the Court to modify a lawful sentence imposed by the trial court.
13. I will proceed to address the two issues together as they are closely related.
14. In addressing the issues for determination, it is necessary to consider the legal framework governing the Court’s powers of revision. Sections 361 to 364 of the Criminal Procedure Code provide for the scope and limitations of such powers.
15. Section 361 vests the High Court with the power to call for records of any case tried in a subordinate court, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order.
16. Section 362 allows the High Court to call for and examine proceedings where it considers that there may have been an error of law or procedural irregularity.
17. Section 363 outlines that if the High Court finds a sentence or order illegal, it may pass such orders as it deems just.
18. Section 364 emphasizes that these powers are not to be used as a substitute for an appeal and are generally exercised to correct patent errors of law or material procedural irregularities.
19. Applying these provisions to the instant case, the Applicant seeks a review of his sentence on grounds of personal circumstances, including remorse, rehabilitation, advanced age and his role as the sole breadwinner, rather than alleging any illegality or procedural error in the trial court proceedings.
20. It is clear that Sections 361 to 364 do not empower the Court to intervene merely because the Applicant believes the sentence is harsh or that his personal circumstances warrant mercy.
21. The Applicant did not file a formal appeal against his conviction or sentence within the statutory period. The sentence of two and a half (2½) years imposed by the Chief Magistrate’s Court, Kisumu, was lawful and within the discretion of the trial Court. There is no evidence of a patent illegality, miscarriage of justice or material procedural irregularity that would trigger the High Court’s powers under Sections 361 to 364.
22. I would agree with Ms. Muema that the personal factors relied upon by the Applicant relate more appropriately to considerations of mercy and parole. Article 133 of the Constitution and the statutory parole system provide avenues for addressing such concerns, rather than the High Court’s revisionary powers. Sections 361–364 were not intended to bypass these mechanisms or convert personal hardship into a legal entitlement to modification of a lawful sentence.
23. While the Court sympathizes with the Applicant’s stated circumstances, the law requires that judicial intervention in a lawful sentence be grounded in jurisdictional errors, illegality or procedural defect, none of which exist in this case. Exercising its powers under Sections 361–364, the Court finds no basis to revise the sentence imposed by the trial court.
24. Accordingly, both issues for determination are resolved against the Applicant. The failure to appeal bars the use of the High Court’s revisionary powers as a substitute for an appeal and personal circumstances, do not constitute a legal basis for interference with a lawful sentence under Sections 361 to 364 of the Criminal Procedure Code.
25. In the circumstances, I am persuaded by the Respondent’s position that this Court lacks jurisdiction to review or vary the sentence imposed upon the Applicant. Consequently, the Applicant’s motion is hereby dismissed.
26. It is so ordered.
27. 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 assertion that he has demonstrated genuine remorse for his past actions and has undergone significant rehabilitation. He further contends that he is advanced in age and that the prison environment is no longer suitable or conducive to his physical and mental well-being. Additionally, he states that he is the sole breadwinner for his family and his continued incarceration places a substantial hardship on their welfare.
3. In his supporting affidavit, the Applicant reiterates the grounds upon which his application is based, emphasizing his genuine remorse, rehabilitation, advanced age, the unsuitability of the prison environment and his role as the sole provider for his family.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant was convicted and sentenced to two and a half (2½) years’ imprisonment in original case file No. E173/2025 at the Chief Magistrate’s Court, Kisumu. She further deposes that the Applicant seeks a review or reduction of his sentence to a non-custodial option, such as probation or a community service order, citing factors including remorse, advanced age, being a sole breadwinner and suitability for non-custodial measures.
5. Ms. Muema notes that there is no record of the Applicant having filed a formal appeal against his conviction or sentence, nor any prior application for revision in this matter. She states that the sentence imposed by the trial court was lawful, moderate and proportionate to the seriousness of the offence and that the Applicant has not demonstrated that the sentence is illegal or excessive in principle.
6. The learned Prosecution Counsel emphasizes that the High Court’s revisionary powers under Section 364 of the Criminal Procedure Code are intended to correct patent errors of law or material procedural irregularities and are not a substitute for an appeal, which the Applicant failed to file within the statutory period.
7. Ms. Muema further deposes that the personal factors relied upon by the Applicant, including remorse, age, character reform and being a sole breadwinner, relate to mercy and rehabilitation, and the proper avenues for such considerations are the Power of Mercy Committee under Article 133 of the Constitution or the parole system, rather than review/revision of a lawful sentence.
8. Counsel concludes that the Application lacks a legal or jurisdictional basis for the Court to interfere with the Applicant’s lawful sentence and respectfully prays that the Court dismiss the Application in its entirety.
9. The parties herein relied on their respective affidavits in addressing the application.
10. Having considered the application, the affidavits filed by the parties and the respective positions taken by the Applicant and the Respondent, two issues arise for determination.
11. The first is whether the Applicant, having failed to file a formal appeal against his conviction or sentence, can legitimately invoke the High Court’s revisionary powers under Sections 361 to 364 of the Criminal Procedure Code to seek a review or reduction of his sentence.
12. The second issue is whether the personal factors advanced by the Applicant, namely, genuine remorse, rehabilitation, advanced age, being the sole breadwinner and the unsuitability of the prison environment, constitute sufficient legal or jurisdictional grounds for the Court to modify a lawful sentence imposed by the trial court.
13. I will proceed to address the two issues together as they are closely related.
14. In addressing the issues for determination, it is necessary to consider the legal framework governing the Court’s powers of revision. Sections 361 to 364 of the Criminal Procedure Code provide for the scope and limitations of such powers.
15. Section 361 vests the High Court with the power to call for records of any case tried in a subordinate court, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order.
16. Section 362 allows the High Court to call for and examine proceedings where it considers that there may have been an error of law or procedural irregularity.
17. Section 363 outlines that if the High Court finds a sentence or order illegal, it may pass such orders as it deems just.
18. Section 364 emphasizes that these powers are not to be used as a substitute for an appeal and are generally exercised to correct patent errors of law or material procedural irregularities.
19. Applying these provisions to the instant case, the Applicant seeks a review of his sentence on grounds of personal circumstances, including remorse, rehabilitation, advanced age and his role as the sole breadwinner, rather than alleging any illegality or procedural error in the trial court proceedings.
20. It is clear that Sections 361 to 364 do not empower the Court to intervene merely because the Applicant believes the sentence is harsh or that his personal circumstances warrant mercy.
21. The Applicant did not file a formal appeal against his conviction or sentence within the statutory period. The sentence of two and a half (2½) years imposed by the Chief Magistrate’s Court, Kisumu, was lawful and within the discretion of the trial Court. There is no evidence of a patent illegality, miscarriage of justice or material procedural irregularity that would trigger the High Court’s powers under Sections 361 to 364.
22. I would agree with Ms. Muema that the personal factors relied upon by the Applicant relate more appropriately to considerations of mercy and parole. Article 133 of the Constitution and the statutory parole system provide avenues for addressing such concerns, rather than the High Court’s revisionary powers. Sections 361–364 were not intended to bypass these mechanisms or convert personal hardship into a legal entitlement to modification of a lawful sentence.
23. While the Court sympathizes with the Applicant’s stated circumstances, the law requires that judicial intervention in a lawful sentence be grounded in jurisdictional errors, illegality or procedural defect, none of which exist in this case. Exercising its powers under Sections 361–364, the Court finds no basis to revise the sentence imposed by the trial court.
24. Accordingly, both issues for determination are resolved against the Applicant. The failure to appeal bars the use of the High Court’s revisionary powers as a substitute for an appeal and personal circumstances, do not constitute a legal basis for interference with a lawful sentence under Sections 361 to 364 of the Criminal Procedure Code.
25. In the circumstances, I am persuaded by the Respondent’s position that this Court lacks jurisdiction to review or vary the sentence imposed upon the Applicant. Consequently, the Applicant’s motion is hereby dismissed.
26. It is so ordered.
27. 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.