1. The Applicant herein, who is the Respondent in Kisumu Miscellaneous Criminal Application No. E086 of 2026, was presented before the lower court on 11th March 2026, where the State applied for him to be detained in police custody for fourteen (14) days pending the conclusion of police investigations.
2. As per the affidavit of the investigating officer filed in the lower court file, which is before me, the offence that the Applicant is suspected to have committed, in respect of which investigations are in gear, is that of mutilating currency notes contrary to Section 367A of the Penal Code, Cap 63 Laws of Kenya. Let us read the said provision of statute:
367A. Mutilating currency notes
Any person who wilfully and without lawful authority or excuse defaces, tears, cuts or otherwise mutilates any currency note shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding two thousand shillings or to both such imprisonment and fine.
3. The lower court heard the application seeking custodial orders, reserved its ruling for 25th March 2026 and ordered that the Applicant remains detained at Central Police Station, Kisumu, in the intervening period.
4. Vide a letter dated 12th March, 2026, Mr. Oguso, learned Counsel for the Applicant has moved this court under Article 49(2) of the Constitution and Section 362 - 367 of the Criminal Procedure Code seeking revision of the lower court order placing the Applicant in custody.
5. Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable only by a fine or by imprisonment for not more than six months.
6. Sections 362 to 367 of the Criminal Procedure, grant the High Court supervisory jurisdiction over subordinate courts in criminal matters. In particular, Section 362 empowers the High Court to call for and examine the record of any criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of the proceedings of that court.
7. Upon such examination, the High Court may exercise the powers set out under Section 364, including altering, reversing or setting aside the impugned order where it finds that the subordinate court acted without jurisdiction, made an illegal or improper order, misapplied the law or conducted proceedings in an irregular manner.
8. The revisionary jurisdiction is therefore intended to enable the High Court to correct errors and ensure that justice is properly administered, although it is generally not available where a party had a right of appeal but failed to exercise it, as provided under Section 364(5) of the Code.
9. From the facts and legal provisions set out above, the following issues arise for determination:
a. Whether the offence of mutilating currency notes under Section 367A of the Penal Code is an offence to which Article 49(2) of the Constitution.
b. Whether the order of the lower court directing that the Applicant remain in police custody pending the delivery of the ruling was lawful and proper in light of Article 49(2) of the Constitution.
c. Whether the circumstances of the case warrant the exercise of this Court’s revisionary jurisdiction under Sections 362 to 367 of the Criminal Procedure Code to set aside or vary the impugned order of the lower court.
10. On the first issue, which is whether the offence of mutilating currency notes under Section 367A of the Penal Code is an offence to which Article 49(2) of the Constitution applies, the Article provides that a person shall not be remanded in custody for an offence if the offence is punishable only by a fine or by imprisonment for not more than six months.
11. Section 367A of the Penal Code criminalises the mutilation of currency notes and prescribes a maximum sentence of imprisonment for a term not exceeding three months or a fine not exceeding two thousand shillings, or both. The maximum penalty under Section 367A is therefore within the constitutional threshold prescribed in Article 49(2), such that remand in custody for an offence punishable by imprisonment not exceeding six months is constitutionally prohibited.
12. A subordinate court hearing an application for remand must be guided by the Constitution’s explicit prohibition on custodial remand for offences with short imprisonment sentences than do not exceed six months.
13. The second issue is whether the order of the lower court directing that the Applicant remain in police custody pending the delivery of the ruling was lawful and proper in light of Article 49(2) of the Constitution.
14. The lower court ordered that the Applicant remain in custody at Central Police Station, Kisumu, until it delivers its reserved ruling. As we have seen above, Article 49(2) expressly prohibits remand in custody for the offence if the offence is punishable only by a fine or by imprisonment for not more than six months. There is no two way about it. The order went against the constitutional provision. I need not say more.
15. On the third issue, which is whether the circumstances of the case warrant the exercise of this Court’s revisionary jurisdiction to set aside or vary the impugned order of the lower court, Article 165(6) of the Constitution and Sections 362 to 367 of the Criminal Procedure Code confer upon this Court a supervisory and revisionary jurisdiction over subordinate courts in criminal matters.
16. Under Section 362 of the Criminal Procedure Code, this Court may call for and examine the record of criminal proceedings before a subordinate court to satisfy itself as to the correctness, legality or propriety of any order and the regularity of the proceedings. Section 364 empowers this Court to alter, reverse or set aside any impugned order that is illegal, improper or irregular.
17. The High Court’s revisionary jurisdiction is a necessary corrective tool where subordinate courts’ orders result in infringements of fundamental rights or are otherwise irregular or improper. In the present matter, the lower court’s custodial order, in light of Article 49(2), constitutes an irregular and improper order because it subjects the Applicant to custody for an offence that is constitutionally exempt from remand custody.
18. In the premises, this Court is satisfied that the circumstances of this case warrant the exercise of its supervisory and revisionary jurisdiction under Article 165(6) of the Constitution and Sections 362 to 367 of the Criminal Procedure Code to set aside or vary the impugned custodial order of the lower court and to uphold the constitutional protections afforded to the Applicant.
19. Being of the foregoing findings, the orders that I then make are as follows:
a. The the proceedings taken and subsequent orders for custodial remand issued on 11th March, 2026 in Kisumu Miscellaneous Criminal Application No. E086 of 2026 are hereby revised and quashed on the grounds that the offence under Section 367A of the Penal Code, being punishable by imprisonment not exceeding three months or a fine, falls within the ambit of Article 49(2) of the Constitution, and the Applicant should not have been remanded in custody.
b. The Applicant shall therefore be released forthwith from Central Police Station, Kisumu, noting that no criminal charges have been preferred against him, unless he is otherwise lawfully detained.
c. The Court further directs that the lower court file be closed, with no further action to be taken in respect of the application for custodial remand, as it should never have been entertained in the first place given the constitutional prohibition under Article 49(2).
d. The Registrar of this Court is directed to serve the orders issued herein upon the Officer in Charge, Central Police Station, Kisumu and to place a copy of the order in the lower court file.
e. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPLICANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.
2. As per the affidavit of the investigating officer filed in the lower court file, which is before me, the offence that the Applicant is suspected to have committed, in respect of which investigations are in gear, is that of mutilating currency notes contrary to Section 367A of the Penal Code, Cap 63 Laws of Kenya. Let us read the said provision of statute:
367A. Mutilating currency notes
Any person who wilfully and without lawful authority or excuse defaces, tears, cuts or otherwise mutilates any currency note shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding two thousand shillings or to both such imprisonment and fine.
3. The lower court heard the application seeking custodial orders, reserved its ruling for 25th March 2026 and ordered that the Applicant remains detained at Central Police Station, Kisumu, in the intervening period.
4. Vide a letter dated 12th March, 2026, Mr. Oguso, learned Counsel for the Applicant has moved this court under Article 49(2) of the Constitution and Section 362 - 367 of the Criminal Procedure Code seeking revision of the lower court order placing the Applicant in custody.
5. Article 49(2) provides that a person shall not be remanded in custody for an offence if the offence is punishable only by a fine or by imprisonment for not more than six months.
6. Sections 362 to 367 of the Criminal Procedure, grant the High Court supervisory jurisdiction over subordinate courts in criminal matters. In particular, Section 362 empowers the High Court to call for and examine the record of any criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of the proceedings of that court.
7. Upon such examination, the High Court may exercise the powers set out under Section 364, including altering, reversing or setting aside the impugned order where it finds that the subordinate court acted without jurisdiction, made an illegal or improper order, misapplied the law or conducted proceedings in an irregular manner.
8. The revisionary jurisdiction is therefore intended to enable the High Court to correct errors and ensure that justice is properly administered, although it is generally not available where a party had a right of appeal but failed to exercise it, as provided under Section 364(5) of the Code.
9. From the facts and legal provisions set out above, the following issues arise for determination:
a. Whether the offence of mutilating currency notes under Section 367A of the Penal Code is an offence to which Article 49(2) of the Constitution.
b. Whether the order of the lower court directing that the Applicant remain in police custody pending the delivery of the ruling was lawful and proper in light of Article 49(2) of the Constitution.
c. Whether the circumstances of the case warrant the exercise of this Court’s revisionary jurisdiction under Sections 362 to 367 of the Criminal Procedure Code to set aside or vary the impugned order of the lower court.
10. On the first issue, which is whether the offence of mutilating currency notes under Section 367A of the Penal Code is an offence to which Article 49(2) of the Constitution applies, the Article provides that a person shall not be remanded in custody for an offence if the offence is punishable only by a fine or by imprisonment for not more than six months.
11. Section 367A of the Penal Code criminalises the mutilation of currency notes and prescribes a maximum sentence of imprisonment for a term not exceeding three months or a fine not exceeding two thousand shillings, or both. The maximum penalty under Section 367A is therefore within the constitutional threshold prescribed in Article 49(2), such that remand in custody for an offence punishable by imprisonment not exceeding six months is constitutionally prohibited.
12. A subordinate court hearing an application for remand must be guided by the Constitution’s explicit prohibition on custodial remand for offences with short imprisonment sentences than do not exceed six months.
13. The second issue is whether the order of the lower court directing that the Applicant remain in police custody pending the delivery of the ruling was lawful and proper in light of Article 49(2) of the Constitution.
14. The lower court ordered that the Applicant remain in custody at Central Police Station, Kisumu, until it delivers its reserved ruling. As we have seen above, Article 49(2) expressly prohibits remand in custody for the offence if the offence is punishable only by a fine or by imprisonment for not more than six months. There is no two way about it. The order went against the constitutional provision. I need not say more.
15. On the third issue, which is whether the circumstances of the case warrant the exercise of this Court’s revisionary jurisdiction to set aside or vary the impugned order of the lower court, Article 165(6) of the Constitution and Sections 362 to 367 of the Criminal Procedure Code confer upon this Court a supervisory and revisionary jurisdiction over subordinate courts in criminal matters.
16. Under Section 362 of the Criminal Procedure Code, this Court may call for and examine the record of criminal proceedings before a subordinate court to satisfy itself as to the correctness, legality or propriety of any order and the regularity of the proceedings. Section 364 empowers this Court to alter, reverse or set aside any impugned order that is illegal, improper or irregular.
17. The High Court’s revisionary jurisdiction is a necessary corrective tool where subordinate courts’ orders result in infringements of fundamental rights or are otherwise irregular or improper. In the present matter, the lower court’s custodial order, in light of Article 49(2), constitutes an irregular and improper order because it subjects the Applicant to custody for an offence that is constitutionally exempt from remand custody.
18. In the premises, this Court is satisfied that the circumstances of this case warrant the exercise of its supervisory and revisionary jurisdiction under Article 165(6) of the Constitution and Sections 362 to 367 of the Criminal Procedure Code to set aside or vary the impugned custodial order of the lower court and to uphold the constitutional protections afforded to the Applicant.
19. Being of the foregoing findings, the orders that I then make are as follows:
a. The the proceedings taken and subsequent orders for custodial remand issued on 11th March, 2026 in Kisumu Miscellaneous Criminal Application No. E086 of 2026 are hereby revised and quashed on the grounds that the offence under Section 367A of the Penal Code, being punishable by imprisonment not exceeding three months or a fine, falls within the ambit of Article 49(2) of the Constitution, and the Applicant should not have been remanded in custody.
b. The Applicant shall therefore be released forthwith from Central Police Station, Kisumu, noting that no criminal charges have been preferred against him, unless he is otherwise lawfully detained.
c. The Court further directs that the lower court file be closed, with no further action to be taken in respect of the application for custodial remand, as it should never have been entertained in the first place given the constitutional prohibition under Article 49(2).
d. The Registrar of this Court is directed to serve the orders issued herein upon the Officer in Charge, Central Police Station, Kisumu and to place a copy of the order in the lower court file.
e. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPLICANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.