1. The petition herein has moved this court seeking the following orders;
a. Spent
b. The court calls for the records in Machakos High Court Criminal Case No. 035 of 2015.
c. The Court invokes Article 50 (6)(a)(b) of the Constitution.
d. The Court be pleased to issue any other order it deem fit in the circumstances.
2. The application is supported by grounds contained in the petition and supporting affidavit sworn by the petitioner. The petitioner contends that his request to recall witness PW3, PW6 and PW10 was not considered by the trial court; that his request to have the case start afresh was ignored; and that he was not accorded a fair hearing as guaranteed under Article 50(2) 25(1) of the Constitution. He therefore urges that it is fair and just for the court to order a retrial noting that this court has jurisdiction to hear and determine the matter.
3. The application was opposed and conversed by way of submissions.
4. The petitioner set out four grounds for the petition as follows;
a. That his right to access information under Article 35 of the Constitution was contravened.
b. He was subjected to an unfair trial contrary to Article 50 (2)(b)c of the Constitution.
c. The trial court violated Section 150 of the Criminal Procedure Code (CPC) and Section 146(1) of the Evidence Act.
d. That the court should consider the period he spent in remand custody under section 333(2) of the CPC.
5. On the alleged violation of the right to fair trial and access to information, the petitioner submitted that the prosecution evidence was disclosed only to his lawyer and not to him personally. He argued that he was entitled to be directly supplied with the statement. He made reference to the case of L.N Kagiriri vs Republic (p.319D paragraph B).
6. He further submitted that he was ambushed with new evidence at trial leading to his conviction. He contended that the rights of an accused person are fundamental and protected under Article 47 and 50 of the Constitution. Thus, he urged that failure by the prosecution to supply him with witness statement amounted to a material irregularity. To support this argument, he cited the case of Francis Macharia Gichangi and 3 others versus Republic CR. Appeal No. 11 of 2004.
7. On the alleged violation of Article 50(2)(c), he submitted that the prosecution failed to investigate or test the defence evidence. He urged that inconsistencies in the case arose because he was not supplied with witness statements or relevant documents, thereby infringing his constitutional rights.
8. On ground 3 relating to Section 150 of CPC as read with Section 146 (1) of the Evidence Act, the Petitioner submitted that he requested to recall witnesses PW3, PW5 and PW10 but was denied the opportunity. He argued that these witnesses were not properly cross examined and urged the court to order retrial in light of this procedural irregularity.
9. He also urged the court to consider the time period spent in custody from the date of arrest. He relied on the case of Ahmed Abolfahi Mohammed Criminal Appeal No. 135 of 2016 as well as section 333(2) of the CPC.
10. In conclusion, the petitioner prayed that this court quashes the conviction and set aside the sentence.
Respondent Submissions.
11. In opposing the application, the respondent submitted that the High Court rendered its judgment in November 2021 in Machakos High Court Criminal Case No. E035 of 2015 where in the petitioner was convicted of the offence of murder. Consequently, he urged that this court lacks jurisdiction to review the sentence already meted out.
12. On the question of whether there was new and compelling evidence, the respondent relied on Phillip Mueke Maingi & 2 Others v Republic (2022) eKLR, urging that no new evidence had been adduced to warrant the reopening of the matter.
13. It was further submitted that PW3, PW6 and PW10 were not recalled and a perusal of the court proceedings does not reveal any prayer to recall witness or to have the matter begin a fresh. The hearing was wholly conducted by Hon. D.K. Kemei J who heard the case and delivered both judgment and sentence.
14. On whether time spent in custody should be considered under 333(2) CPC, the respondent argued that the trial court adequately addressed the issue. The record shows that the accused was out on bond during trial, and upon conviction, he was sentenced to 20 years imprisonment effective from 6th July 2021.
15. The respondent further urged that the petitioner was at all material time represented by counsel, who acted under his instructions. That since he was out on bond, he had the opportunity to obtain copies of the trial bundle for himself. The respondent therefore contended that the allegations raised are an afterthought, and the petitioner was accorded a fair trial. They prayed that the petition be dismissed forthwith.
Analysis and Determination
16. Upon careful consideration of the petition, and the parties respective submissions, the issues emerging for determination are;
a. Whether this court has jurisdiction to hear and determine this petition
b. Whether the petitioner has established grounds sufficient to warrant setting aside of the judgment.
17. The facts of this case are not in dispute. The petitioner was charged with the offence of murder under Section 203 as read together with Section 204 of the penal code. He pleaded not guilty, the trial proceeded, and he was ultimately found guilty, convicted and sentenced to serve 20 years imprisonment.
18. The petitioner now seeks relief on three board grounds; that his rights under Article 35, 50(2)(b)(c) of the Constitution were violated; that the trial court contravened Section 150 of the CPC as read together with Section 146(1) of the Evidence Act by denying him the opportunity to recall witnesses and that the time spent in custody should be considered in line with Section 333(2) of the CPC.
19. With regard to whether the petitioner’s rights were violated, this court notes that the impugned proceedings are those of the High Court exercising its original jurisdiction. This court and the High Court are courts of concurrent jurisdiction. Where a party is aggrieved by a decision of a court of concurrent jurisdiction, the proper recourse is to lodge an appeal. In this instance, the petitioner ought to have appealed and raised the alleged violations before the Court of Appeal.Reference is made to 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.”
20. The principle is clear: jurisdiction cannot be expanded by judicial craft. The petitioner’s grievance ought to have been ventilated before the Court of Appeal.
21. On whether there was a violation of Section 150 CPC and Section 146(1) of the Evidence Act, this court finds that Section 150 CPC empowers the trial court to summon or examine witnesses at any stage of the proceedings, while Section 146(1) governs the order and direction of examination. These provisions apply during the pendency of trial, not at the appellate stage.
22. Upon perusal of the trial record, and as correctly submitted by the respondent, there is no indication that the petitioner ever sought to recall witnesses PW3, PW6, or PW10. Accordingly, this ground fails.
23. On the issue of Section 333(2) CPC, the trial court expressly considered the time factor by ordering that the sentence commence from the date of conviction, namely 6th July 2021. The petitioner was out on bond during trial, and thus no remand period was overlooked. This ground equally fails.
24. The upshot of the foregoing analysis is that the petition fails in its entirety.
Orders accordingly
Delivered, Dated and Signed this 6th day of March 2026
a. Spent
b. The court calls for the records in Machakos High Court Criminal Case No. 035 of 2015.
c. The Court invokes Article 50 (6)(a)(b) of the Constitution.
d. The Court be pleased to issue any other order it deem fit in the circumstances.
2. The application is supported by grounds contained in the petition and supporting affidavit sworn by the petitioner. The petitioner contends that his request to recall witness PW3, PW6 and PW10 was not considered by the trial court; that his request to have the case start afresh was ignored; and that he was not accorded a fair hearing as guaranteed under Article 50(2) 25(1) of the Constitution. He therefore urges that it is fair and just for the court to order a retrial noting that this court has jurisdiction to hear and determine the matter.
3. The application was opposed and conversed by way of submissions.
4. The petitioner set out four grounds for the petition as follows;
a. That his right to access information under Article 35 of the Constitution was contravened.
b. He was subjected to an unfair trial contrary to Article 50 (2)(b)c of the Constitution.
c. The trial court violated Section 150 of the Criminal Procedure Code (CPC) and Section 146(1) of the Evidence Act.
d. That the court should consider the period he spent in remand custody under section 333(2) of the CPC.
5. On the alleged violation of the right to fair trial and access to information, the petitioner submitted that the prosecution evidence was disclosed only to his lawyer and not to him personally. He argued that he was entitled to be directly supplied with the statement. He made reference to the case of L.N Kagiriri vs Republic (p.319D paragraph B).
6. He further submitted that he was ambushed with new evidence at trial leading to his conviction. He contended that the rights of an accused person are fundamental and protected under Article 47 and 50 of the Constitution. Thus, he urged that failure by the prosecution to supply him with witness statement amounted to a material irregularity. To support this argument, he cited the case of Francis Macharia Gichangi and 3 others versus Republic CR. Appeal No. 11 of 2004.
7. On the alleged violation of Article 50(2)(c), he submitted that the prosecution failed to investigate or test the defence evidence. He urged that inconsistencies in the case arose because he was not supplied with witness statements or relevant documents, thereby infringing his constitutional rights.
8. On ground 3 relating to Section 150 of CPC as read with Section 146 (1) of the Evidence Act, the Petitioner submitted that he requested to recall witnesses PW3, PW5 and PW10 but was denied the opportunity. He argued that these witnesses were not properly cross examined and urged the court to order retrial in light of this procedural irregularity.
9. He also urged the court to consider the time period spent in custody from the date of arrest. He relied on the case of Ahmed Abolfahi Mohammed Criminal Appeal No. 135 of 2016 as well as section 333(2) of the CPC.
10. In conclusion, the petitioner prayed that this court quashes the conviction and set aside the sentence.
Respondent Submissions.
11. In opposing the application, the respondent submitted that the High Court rendered its judgment in November 2021 in Machakos High Court Criminal Case No. E035 of 2015 where in the petitioner was convicted of the offence of murder. Consequently, he urged that this court lacks jurisdiction to review the sentence already meted out.
12. On the question of whether there was new and compelling evidence, the respondent relied on Phillip Mueke Maingi & 2 Others v Republic (2022) eKLR, urging that no new evidence had been adduced to warrant the reopening of the matter.
13. It was further submitted that PW3, PW6 and PW10 were not recalled and a perusal of the court proceedings does not reveal any prayer to recall witness or to have the matter begin a fresh. The hearing was wholly conducted by Hon. D.K. Kemei J who heard the case and delivered both judgment and sentence.
14. On whether time spent in custody should be considered under 333(2) CPC, the respondent argued that the trial court adequately addressed the issue. The record shows that the accused was out on bond during trial, and upon conviction, he was sentenced to 20 years imprisonment effective from 6th July 2021.
15. The respondent further urged that the petitioner was at all material time represented by counsel, who acted under his instructions. That since he was out on bond, he had the opportunity to obtain copies of the trial bundle for himself. The respondent therefore contended that the allegations raised are an afterthought, and the petitioner was accorded a fair trial. They prayed that the petition be dismissed forthwith.
Analysis and Determination
16. Upon careful consideration of the petition, and the parties respective submissions, the issues emerging for determination are;
a. Whether this court has jurisdiction to hear and determine this petition
b. Whether the petitioner has established grounds sufficient to warrant setting aside of the judgment.
17. The facts of this case are not in dispute. The petitioner was charged with the offence of murder under Section 203 as read together with Section 204 of the penal code. He pleaded not guilty, the trial proceeded, and he was ultimately found guilty, convicted and sentenced to serve 20 years imprisonment.
18. The petitioner now seeks relief on three board grounds; that his rights under Article 35, 50(2)(b)(c) of the Constitution were violated; that the trial court contravened Section 150 of the CPC as read together with Section 146(1) of the Evidence Act by denying him the opportunity to recall witnesses and that the time spent in custody should be considered in line with Section 333(2) of the CPC.
19. With regard to whether the petitioner’s rights were violated, this court notes that the impugned proceedings are those of the High Court exercising its original jurisdiction. This court and the High Court are courts of concurrent jurisdiction. Where a party is aggrieved by a decision of a court of concurrent jurisdiction, the proper recourse is to lodge an appeal. In this instance, the petitioner ought to have appealed and raised the alleged violations before the Court of Appeal.Reference is made to 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.”
20. The principle is clear: jurisdiction cannot be expanded by judicial craft. The petitioner’s grievance ought to have been ventilated before the Court of Appeal.
21. On whether there was a violation of Section 150 CPC and Section 146(1) of the Evidence Act, this court finds that Section 150 CPC empowers the trial court to summon or examine witnesses at any stage of the proceedings, while Section 146(1) governs the order and direction of examination. These provisions apply during the pendency of trial, not at the appellate stage.
22. Upon perusal of the trial record, and as correctly submitted by the respondent, there is no indication that the petitioner ever sought to recall witnesses PW3, PW6, or PW10. Accordingly, this ground fails.
23. On the issue of Section 333(2) CPC, the trial court expressly considered the time factor by ordering that the sentence commence from the date of conviction, namely 6th July 2021. The petitioner was out on bond during trial, and thus no remand period was overlooked. This ground equally fails.
24. The upshot of the foregoing analysis is that the petition fails in its entirety.
Orders accordingly
Delivered, Dated and Signed this 6th day of March 2026