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1. The applicant, Fredinah Lucy, has filed three applications before this court. The first is Criminal Misc Application No E126 of 2024 Fredinah Lucy v Republic and the second is Misc Criminal Revision E033 of 2025. Both applications are similar in nature as the applicant seeks leave to file an appeal out of time. The third application is Criminal Revision No E019 of 2025, in which the applicant seeks a revision of her sentence, specifically, a reduction of the sentence and grant of a non-custodial sentence.
2. For orderly and efficient handling of the applications this court shall determine all three applications together. A copy of this ruling shall be placed in each respective file.
3. In the first two applications, the applicant seeks leave to file an appeal out of time. Her request is supported by a sworn affidavit in which she depones that she was convicted and sentenced to 15 years’ imprisonment for the offence of grievous harm, contrary to Section 234 of the Penal Code, on 29th November 2022 by the High Court in Machakos Criminal Appeal No. E058 of 2021. She states that she lacked legal representation to assist her in filing the appeal within the prescribed time, that she is indigent and unable to hire an advocate, that there was delay in obtaining the lower court proceedings, and that her appeal has high chances of success. These applications were not objected to.
4. In response, to the application for review, counsel for the respondent opposed and outlined the various applications previously filed by the applicant. These include:
a. Machakos Criminal Revision No. E019 of 2025, where the applicant sought a reduction of sentence and a non-custodial sentence;
b. Miscellaneous Criminal Application No. E126 of 2024, seeking leave to appeal out of time;
c. Machakos High Court Criminal Appeal No. E058 of 2021, where the applicant appealed the trial court’s decision. In that appeal, the conviction was upheld, but the sentence was reduced from 20 years to 15 years;
d. HC Miscellaneous Criminal Revision No. E033 of 2024, which mirrors the prayers in Application No. E126 of 2024.
5. This court notes that in Criminal Appeal No. E058 of 2021, the High Court upheld the applicant’s conviction and reduced her sentence from 20 years to 15 years. I have considered the applicant’s applications, her supporting affidavit, and the submissions of both parties. The applicant seeks a review of her sentence on the grounds that she has been in custody and has undergone rehabilitation and reform.
6. This Court observes that the Applicant appealed to the High Court against his conviction and sentence. The High Court in exercise of its appellate jurisdiction rendered its decision in which the sentence issued by the trial court was reduced from 20 years to 15 years.
7. This court observes that the applicant’s conviction and sentence were rendered by the High Court while exercising its appellate jurisdiction. Where a party is aggrieved by a decision rendered by this Court in the exercise of its appellate jurisdiction, the appropriate recourse lies in filing an appeal before the Court of Appeal."
8. I wish to draw reference from the case of Daniel Otieno Oracha v Republic [2019] KEHC 6242 (KLR) where the court in a similar situation held as follows;
“13. This court and the High Court at Kisumu are courts of concurrent jurisdiction. That being the case, this court is devoid of any jurisdiction in the exercise of its judicial authority under Article 159 of the Constitution, to review a judgment of a court of concurrent jurisdiction. To do so would be tantamount to sitting as an Appellate court on the judgment of my sister Judge Hon. Abida Ali - Aroni, J.
14. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise.
15. This court’s jurisdiction is derived from various statutes and Article 165 of the Constitution. In Samuel Kamau Macharia & Another V. KCB & 2 Others App. No. 2/2011, the Supreme Court of Kenya made it clear that a court cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law, and that a court cannot expand its jurisdiction through judicial craft.
16. The judgment of Abida Ali-Aroni J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.”
9. Accordingly, this Court lacks the jurisdiction to review a matter already adjudicated by a court of concurrent jurisdiction.
10. Regarding the application for extension of time to file and appeal section 7 of the Appellate Jurisdiction Act provides
The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired: Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.
11. Guided by this provision, and in exercise of the discretionary powers conferred therein, and considering the reasons advanced in support of the application and the duration of the sentence, this court grants the applicant 14 days leave to lodge her notice of appeal to the Court of Appeal.
12. The upshot of the above is that
a. Machakos Criminal Revision No. E019 of 2025, is dismissed for want of jurisdiction.
b. Machakos Miscellaneous Criminal Application No. E126 of 2024, and HC Miscellaneous Criminal Revision No. E033 of 2024, are hereby allowed. The applicant is given 14 days to file her Notice of Appeal to the Court of Appeal.
Orders accordingly.
Dated, signed and delivered at Machakos this 9th day of October, 2025
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1. The applicant, Fredinah Lucy, has filed three applications before this court. The first is Criminal Misc Application No E126 of 2024 Fredinah Lucy v Republic and the second is Misc Criminal Revision E033 of 2025. Both applications are similar in nature as the applicant seeks leave to file an appeal out of time. The third application is Criminal Revision No E019 of 2025, in which the applicant seeks a revision of her sentence, specifically, a reduction of the sentence and grant of a non-custodial sentence.
2. For orderly and efficient handling of the applications this court shall determine all three applications together. A copy of this ruling shall be placed in each respective file.
3. In the first two applications, the applicant seeks leave to file an appeal out of time. Her request is supported by a sworn affidavit in which she depones that she was convicted and sentenced to 15 years’ imprisonment for the offence of grievous harm, contrary to Section 234 of the Penal Code, on 29th November 2022 by the High Court in Machakos Criminal Appeal No. E058 of 2021. She states that she lacked legal representation to assist her in filing the appeal within the prescribed time, that she is indigent and unable to hire an advocate, that there was delay in obtaining the lower court proceedings, and that her appeal has high chances of success. These applications were not objected to.
4. In response, to the application for review, counsel for the respondent opposed and outlined the various applications previously filed by the applicant. These include:
a. Machakos Criminal Revision No. E019 of 2025, where the applicant sought a reduction of sentence and a non-custodial sentence;
b. Miscellaneous Criminal Application No. E126 of 2024, seeking leave to appeal out of time;
c. Machakos High Court Criminal Appeal No. E058 of 2021, where the applicant appealed the trial court’s decision. In that appeal, the conviction was upheld, but the sentence was reduced from 20 years to 15 years;
d. HC Miscellaneous Criminal Revision No. E033 of 2024, which mirrors the prayers in Application No. E126 of 2024.
5. This court notes that in Criminal Appeal No. E058 of 2021, the High Court upheld the applicant’s conviction and reduced her sentence from 20 years to 15 years. I have considered the applicant’s applications, her supporting affidavit, and the submissions of both parties. The applicant seeks a review of her sentence on the grounds that she has been in custody and has undergone rehabilitation and reform.
6. This Court observes that the Applicant appealed to the High Court against his conviction and sentence. The High Court in exercise of its appellate jurisdiction rendered its decision in which the sentence issued by the trial court was reduced from 20 years to 15 years.
7. This court observes that the applicant’s conviction and sentence were rendered by the High Court while exercising its appellate jurisdiction. Where a party is aggrieved by a decision rendered by this Court in the exercise of its appellate jurisdiction, the appropriate recourse lies in filing an appeal before the Court of Appeal."
8. I wish to draw reference from the case of Daniel Otieno Oracha v Republic [2019] KEHC 6242 (KLR) where the court in a similar situation held as follows;
“13. This court and the High Court at Kisumu are courts of concurrent jurisdiction. That being the case, this court is devoid of any jurisdiction in the exercise of its judicial authority under Article 159 of the Constitution, to review a judgment of a court of concurrent jurisdiction. To do so would be tantamount to sitting as an Appellate court on the judgment of my sister Judge Hon. Abida Ali - Aroni, J.
14. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise.
15. This court’s jurisdiction is derived from various statutes and Article 165 of the Constitution. In Samuel Kamau Macharia & Another V. KCB & 2 Others App. No. 2/2011, the Supreme Court of Kenya made it clear that a court cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law, and that a court cannot expand its jurisdiction through judicial craft.
16. The judgment of Abida Ali-Aroni J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.”
9. Accordingly, this Court lacks the jurisdiction to review a matter already adjudicated by a court of concurrent jurisdiction.
10. Regarding the application for extension of time to file and appeal section 7 of the Appellate Jurisdiction Act provides
The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired: Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.
11. Guided by this provision, and in exercise of the discretionary powers conferred therein, and considering the reasons advanced in support of the application and the duration of the sentence, this court grants the applicant 14 days leave to lodge her notice of appeal to the Court of Appeal.
12. The upshot of the above is that
a. Machakos Criminal Revision No. E019 of 2025, is dismissed for want of jurisdiction.
b. Machakos Miscellaneous Criminal Application No. E126 of 2024, and HC Miscellaneous Criminal Revision No. E033 of 2024, are hereby allowed. The applicant is given 14 days to file her Notice of Appeal to the Court of Appeal.
Orders accordingly.
Dated, signed and delivered at Machakos this 9th day of October, 2025
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