1. The Applicant was convicted in Mwingi CR SO 7 of 2019 of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced to twenty (20) years' imprisonment on 27th April 2021. He appealed to this Court in HCCRA E007 of 2022, which appeal was dismissed on 18th September 2023.
2. Although the present application is styled as a constitutional Petition, its substance is a request for revision and reconsideration of the sentence. The Applicant seeks, principally, the benefit of section 333(2) of the Criminal Procedure Code and resentencing. He also relies on his rehabilitation, remorse and personal circumstances.
3. The issue is whether this Court has jurisdiction to revise or otherwise reconsider the judgment and sentence which it upheld in HCCRA E007 of 2022.
4. Section 362 of the Criminal Procedure Code gives the High Court power to call for and examine the record of proceedings before a subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of a finding, sentence or order. The jurisdiction is therefore exercised in respect of proceedings of subordinate courts and does not extend to revising a judgment of the High Court itself.
5. The Court of Appeal considered the precise issue in John v Republic [2025] KECA 45 (KLR) and held that the High Court has no jurisdiction to review its own concluded appellate judgment and that its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code is confined to proceedings of subordinate courts. The High Court therefore becomes functus officio upon determination of the appeal.
6. The same position applies here. The Applicant's appeal was determined by this Court on 18th September 2023. His present application seeks to revisit the sentence which was before the Court in that appeal. The fact that the matter is now before a differently constituted Court does not confer a new revisionary jurisdiction. One Judge of the High Court cannot sit in revision or appeal over a judgment of another Judge of the same Court.
7. The principle is consistent with Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held that jurisdiction must be conferred by law and must exist before a court proceeds to determine a matter. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court similarly held that a court's jurisdiction flows from the Constitution or legislation and cannot be arrogated by the court itself.
8. Section 333(2) of the Criminal Procedure Code does not confer jurisdiction to reopen a concluded appellate judgment, nor do sections 216 and 329. The constitutional provisions invoked cannot create such jurisdiction.
9. This Court therefore lacks jurisdiction to entertain the revision and accordingly dismisses the petition dated 09th October 2024 for want of jurisdiction.
2. Although the present application is styled as a constitutional Petition, its substance is a request for revision and reconsideration of the sentence. The Applicant seeks, principally, the benefit of section 333(2) of the Criminal Procedure Code and resentencing. He also relies on his rehabilitation, remorse and personal circumstances.
3. The issue is whether this Court has jurisdiction to revise or otherwise reconsider the judgment and sentence which it upheld in HCCRA E007 of 2022.
4. Section 362 of the Criminal Procedure Code gives the High Court power to call for and examine the record of proceedings before a subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of a finding, sentence or order. The jurisdiction is therefore exercised in respect of proceedings of subordinate courts and does not extend to revising a judgment of the High Court itself.
5. The Court of Appeal considered the precise issue in John v Republic [2025] KECA 45 (KLR) and held that the High Court has no jurisdiction to review its own concluded appellate judgment and that its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code is confined to proceedings of subordinate courts. The High Court therefore becomes functus officio upon determination of the appeal.
6. The same position applies here. The Applicant's appeal was determined by this Court on 18th September 2023. His present application seeks to revisit the sentence which was before the Court in that appeal. The fact that the matter is now before a differently constituted Court does not confer a new revisionary jurisdiction. One Judge of the High Court cannot sit in revision or appeal over a judgment of another Judge of the same Court.
7. The principle is consistent with Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held that jurisdiction must be conferred by law and must exist before a court proceeds to determine a matter. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court similarly held that a court's jurisdiction flows from the Constitution or legislation and cannot be arrogated by the court itself.
8. Section 333(2) of the Criminal Procedure Code does not confer jurisdiction to reopen a concluded appellate judgment, nor do sections 216 and 329. The constitutional provisions invoked cannot create such jurisdiction.
9. This Court therefore lacks jurisdiction to entertain the revision and accordingly dismisses the petition dated 09th October 2024 for want of jurisdiction.