(Revision of sentence in HCCR Case No. 55 of 2012 at Mombasa delivered on 23rd March 2016 and Court of Appeal Criminal Appeal No. 10 of 2018 delivered on 24th May 2024 at Mombasa)
RULING
1. By way of a mock-up Notice of Motion dated 13th February 2024, the Applicant moved this Court seeking review of the sentence of forty (40) years’ imprisonment imposed upon him by the Court of Appeal sitting at Mombasa in Criminal Appeal No. 10 of 2018.
2. The background to the application is that the Applicant was charged, tried, convicted and sentenced for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code by this Court, differently constituted. Being aggrieved by both conviction and sentence, the Applicant appealed to the Court of Appeal. The appellate court upheld the conviction but interfered with the sentence, substituting the life imprisonment imposed by the trial court with a determinate sentence of forty (40) years’ imprisonment.
3. The Court is in receipt of a progressive report prepared by the State Department for Correctional Services through the Officer-in-Charge, Naivasha Maximum Security Prison. The report indicates that during his incarceration the Applicant has demonstrated consistent commitment to personal reform and rehabilitation, is a devoted adherent of the Islamic faith, actively participates in spiritual programs, exhibits good conduct, and has expressed remorse. No recommendation was, however, made regarding an alternative or non-custodial sentence.
4. Additionally, a Sentence Review Report prepared by the Probation Service was filed in Court on 26th November 2025. Mr. S. Musyoka, the Community Service Officer, after interviewing the Applicant’s family, prison authorities and the investigating officer in the original matter, noted that the Applicant has no history of prison misconduct, that his family environment is conducive for reintegration, and recommended that the Applicant be considered for a three (3) year probation sentence.
Analysis and Determination
5. The Court notes that the pleadings filed by the Applicant are poorly structured and do not clearly cite the constitutional or statutory provisions relied upon. Nevertheless, the Court takes judicial notice of the fact that the Applicant is unrepresented, incarcerated, and lacks access to adequate legal facilities. From the totality of the material placed before Court, it is clear that the Applicant seeks review or reduction of sentence.
6. The central issue for determination is whether this Court has jurisdiction to review or interfere with a sentence imposed by the Court of Appeal.
7. The Applicant’s application is premised on his rehabilitation, conduct in prison, health considerations, and the broader constitutional principles under Articles 25, 43 and 50 of the Constitution of Kenya.
8. Article 50(2)(p) and (q) of the Constitution guarantees an accused person the right to the benefit of the least severe prescribed punishment where the law changes, and the right, if convicted, to appeal to or apply for review by a higher court as prescribed by law.
9. This Court’s revisionary jurisdiction is donated by Sections 362 to 364 of the Criminal Procedure Code. Under Section 362, the High Court may call for and examine the record of criminal proceedings before a subordinate court for purposes of satisfying itself as to the legality, correctness, propriety, or regularity of such proceedings. Section 364 similarly confines the Court’s powers to proceedings emanating from subordinate courts.
10. It is therefore plain from statute that the High Court’s revisionary powers do not extend to decisions of courts of concurrent or superior jurisdiction. In the present matter, the sentence sought to be reviewed was imposed by the Court of Appeal, a superior court whose decisions are binding on this Court.
11. The Applicant appears to rely, albeit implicitly, on the jurisprudence flowing from Francis Karioko Muruatetu & Another v Republic and subsequent sentencing developments. However, the Supreme Court in Francis Karioko Muruatetu & Another v Republic (Directions) [2021] eKLR, and more definitively in Muruatetu (No. 3) , categorically clarified that the Muruatetu decision applies only to the offence of murder and only at the sentencing stage before the trial court , or upon re-sentencing after a successful appeal or lawful reopening of the sentence by a competent court.
12. In Muruatetu (No. 3) , the Supreme Court expressly cautioned courts against entertaining sentence reviews outside the established appellate and statutory frameworks, and reaffirmed that the decision did not create an open-ended jurisdiction for sentence review by courts lacking mandate. The Court emphasized that jurisdiction is conferred by the Constitution or statute and cannot be assumed on the basis of sympathy, equity, or rehabilitation alone.
13. In the present case, the Applicant’s sentence has already been reconsidered and reviewed by the Court of Appeal in exercise of its appellate jurisdiction, resulting in a reduced determinate sentence. There is therefore no legal vacuum or residual jurisdiction left for this Court to invoke under Muruatetu , Muruatetu (No. 3) , or the Criminal Procedure Code.
14. The position that a judge cannot sit on appeal or review over a decision of a court of concurrent or superior jurisdiction has been consistently upheld. In Daniel Otieno Oracha v Republic [2019] eKLR, Aburili J held that a judge of concurrent jurisdiction cannot review or reduce a sentence imposed by another judge or appellate court, and that proper forum and procedure must be followed.
15. Similar holdings were reached in Lawrence Kariuki Njeru v Republic [2017] KEHC 3304 (KLR), John Kagunda Kariuki v Republic [2019] KEHC 5480 (KLR), and WSC v Republic (Miscellaneous Criminal Application E013 of 2021) [2025] KEHC 192 (KLR), where the Court underscored that once the Court of Appeal has pronounced itself on a conviction and sentence, the High Court becomes functus officio. In particular I note the aspect of mitigation was considered.
16. While this Court acknowledges and commends the Applicant’s rehabilitative progress and empathizes with his circumstances, jurisdiction is everything. Without it, the Court must down its tools.
Disposition
17. In the premises, this Court finds that it lacks jurisdiction to review, vary, or interfere with a sentence imposed by the Court of Appeal. The applicant has also not shown any other fundamental breach to his dignity such as ill health.
18. Accordingly, the application is hereby dismissed for want of jurisdiction .
Orders accordingly.
DATED, SIGNED AND DELIVERED at NAIROBI virtually this …18th…… day of December 2025.
W. K. MICHENI JUDGE
IN THE PRESENCE OF:
For the Applicant: In person at Naivasha Max Prison
For the Respondent: MR NGIRI AND MR SIRIMA
Court Assistant: BEBORA
RULING
1. By way of a mock-up Notice of Motion dated 13th February 2024, the Applicant moved this Court seeking review of the sentence of forty (40) years’ imprisonment imposed upon him by the Court of Appeal sitting at Mombasa in Criminal Appeal No. 10 of 2018.
2. The background to the application is that the Applicant was charged, tried, convicted and sentenced for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code by this Court, differently constituted. Being aggrieved by both conviction and sentence, the Applicant appealed to the Court of Appeal. The appellate court upheld the conviction but interfered with the sentence, substituting the life imprisonment imposed by the trial court with a determinate sentence of forty (40) years’ imprisonment.
3. The Court is in receipt of a progressive report prepared by the State Department for Correctional Services through the Officer-in-Charge, Naivasha Maximum Security Prison. The report indicates that during his incarceration the Applicant has demonstrated consistent commitment to personal reform and rehabilitation, is a devoted adherent of the Islamic faith, actively participates in spiritual programs, exhibits good conduct, and has expressed remorse. No recommendation was, however, made regarding an alternative or non-custodial sentence.
4. Additionally, a Sentence Review Report prepared by the Probation Service was filed in Court on 26th November 2025. Mr. S. Musyoka, the Community Service Officer, after interviewing the Applicant’s family, prison authorities and the investigating officer in the original matter, noted that the Applicant has no history of prison misconduct, that his family environment is conducive for reintegration, and recommended that the Applicant be considered for a three (3) year probation sentence.
Analysis and Determination
5. The Court notes that the pleadings filed by the Applicant are poorly structured and do not clearly cite the constitutional or statutory provisions relied upon. Nevertheless, the Court takes judicial notice of the fact that the Applicant is unrepresented, incarcerated, and lacks access to adequate legal facilities. From the totality of the material placed before Court, it is clear that the Applicant seeks review or reduction of sentence.
6. The central issue for determination is whether this Court has jurisdiction to review or interfere with a sentence imposed by the Court of Appeal.
7. The Applicant’s application is premised on his rehabilitation, conduct in prison, health considerations, and the broader constitutional principles under Articles 25, 43 and 50 of the Constitution of Kenya.
8. Article 50(2)(p) and (q) of the Constitution guarantees an accused person the right to the benefit of the least severe prescribed punishment where the law changes, and the right, if convicted, to appeal to or apply for review by a higher court as prescribed by law.
9. This Court’s revisionary jurisdiction is donated by Sections 362 to 364 of the Criminal Procedure Code. Under Section 362, the High Court may call for and examine the record of criminal proceedings before a subordinate court for purposes of satisfying itself as to the legality, correctness, propriety, or regularity of such proceedings. Section 364 similarly confines the Court’s powers to proceedings emanating from subordinate courts.
10. It is therefore plain from statute that the High Court’s revisionary powers do not extend to decisions of courts of concurrent or superior jurisdiction. In the present matter, the sentence sought to be reviewed was imposed by the Court of Appeal, a superior court whose decisions are binding on this Court.
11. The Applicant appears to rely, albeit implicitly, on the jurisprudence flowing from Francis Karioko Muruatetu & Another v Republic and subsequent sentencing developments. However, the Supreme Court in Francis Karioko Muruatetu & Another v Republic (Directions) [2021] eKLR, and more definitively in Muruatetu (No. 3) , categorically clarified that the Muruatetu decision applies only to the offence of murder and only at the sentencing stage before the trial court , or upon re-sentencing after a successful appeal or lawful reopening of the sentence by a competent court.
12. In Muruatetu (No. 3) , the Supreme Court expressly cautioned courts against entertaining sentence reviews outside the established appellate and statutory frameworks, and reaffirmed that the decision did not create an open-ended jurisdiction for sentence review by courts lacking mandate. The Court emphasized that jurisdiction is conferred by the Constitution or statute and cannot be assumed on the basis of sympathy, equity, or rehabilitation alone.
13. In the present case, the Applicant’s sentence has already been reconsidered and reviewed by the Court of Appeal in exercise of its appellate jurisdiction, resulting in a reduced determinate sentence. There is therefore no legal vacuum or residual jurisdiction left for this Court to invoke under Muruatetu , Muruatetu (No. 3) , or the Criminal Procedure Code.
14. The position that a judge cannot sit on appeal or review over a decision of a court of concurrent or superior jurisdiction has been consistently upheld. In Daniel Otieno Oracha v Republic [2019] eKLR, Aburili J held that a judge of concurrent jurisdiction cannot review or reduce a sentence imposed by another judge or appellate court, and that proper forum and procedure must be followed.
15. Similar holdings were reached in Lawrence Kariuki Njeru v Republic [2017] KEHC 3304 (KLR), John Kagunda Kariuki v Republic [2019] KEHC 5480 (KLR), and WSC v Republic (Miscellaneous Criminal Application E013 of 2021) [2025] KEHC 192 (KLR), where the Court underscored that once the Court of Appeal has pronounced itself on a conviction and sentence, the High Court becomes functus officio. In particular I note the aspect of mitigation was considered.
16. While this Court acknowledges and commends the Applicant’s rehabilitative progress and empathizes with his circumstances, jurisdiction is everything. Without it, the Court must down its tools.
Disposition
17. In the premises, this Court finds that it lacks jurisdiction to review, vary, or interfere with a sentence imposed by the Court of Appeal. The applicant has also not shown any other fundamental breach to his dignity such as ill health.
18. Accordingly, the application is hereby dismissed for want of jurisdiction .
Orders accordingly.
DATED, SIGNED AND DELIVERED at NAIROBI virtually this …18th…… day of December 2025.
W. K. MICHENI JUDGE
IN THE PRESENCE OF:
For the Applicant: In person at Naivasha Max Prison
For the Respondent: MR NGIRI AND MR SIRIMA
Court Assistant: BEBORA