REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKADARA
CRIMINASL DIVISION
CRIMINAL REVISION NO E206 OF 2025
MICHAEL MACHARIA MWANGI ………………………. APPLICANT
VERSUS
REPUBLIC …………………………………….……………. RESPONDENT
( being a revision from the original conviction in Makadara Chief Magistrates Court Criminal Case no 3603 of 2015)
RULING
1. By a Notice of Motion under certificate of urgency undated but filed on 2 nd October 2025 the applicant moved the court for an order that the court be pleased to order that he serves the remaining p[art of his sentence under non-custodial orders.
2. The application was supported by his affidavit in which it was deposed that he was tried convicted and sentenced to serve 30 years imprisonment for the offence of defilement contrary to section 8(2) of the sexual Offences Act.
3. That he appealed the said sentence and conviction to this court in High Court Criminal Appeal No E 079 of 2021 at Milimani wherein the dad conviction and sentence was set aside and substituted with a conviction and sentence of ten years for the alternative count of committing an indecent act with a child contrary to section 11(1) of the Act on 22 nd September 2022 which sentence3 was to run from the date of sentencing by the trial court.
4. He deposed further that the offence he was convicted of is a moral one and as such rehabilitative mode of sentencing would be appropriate for the remaining two years to enable him be fully reintegrated in society .
5. It was contended that the court has jurisdiction by dint of Article 23 of the constitution and that the court should under section 329 of the CPC call for a presentencing report and hear evidence in mitigation.
6. At the hearing herein, Ms Kariuki for the state submitted that the applicant filed an appeal to tis court sitting at Milimani in Criminal appeal No E 079 of 2021 which allowed the appeal and set aside the conviction and sentence and substituted the same with a conviction and sentence of ten years for indecent act with a child and that the applicant had only served five years. It was submitted that the applicant was out on bond during the period of his trial
7. The applicant submitted that he was seeking to be released on probation on account of his age noting that his sentence runs to the 5 th of February 2028.
DETERMINATION
8. The issue of resentencing and the jurisdiction of the High Court thereon is still in a state of confusion in the Kenyan criminal jurisprudence and unless the same is cured by way of practise directions courts shall continue to make contradictory orders and directions thereon depending on the judicial lining of each judge.
9. In this matter the applicant filed an appeal to this court in Criminal Appeal No E079 of 2021 and the court (Mutende J) found the following as facts:
“ 22. Upon medical examination , it was found that the child’s hymen was intact save that she had a tear at the posterior fourchette which is the thin fork-like fold of the skin that stretches at the bottom of the entrance of the vagina. The child alluded to the penis having been placed on her vagina. She did not state that there was penetration whether partial or complete. Therefore, it is doubtful if the offence of defilement was committed.
…….
24. The complainant was a minor who upon being taken through cross examination answered the questions appropriately. She was rescued from the house where the act was committed by members of public. PW2 found people who rescued her still at the scene of the incident. The learned trial magistrate who had opportunity of hearing her and observing her demeanour in compliance with section 124… was satisfied that she was truthful. From the explanation given by the complainant as to what happened , the assailants penis came into contact with her vagina ……..
32 As afore found I find that the prosecution proved the alternative count against the appellant. Therefore , set aside the conviction and sentence imposed on the main charge which I substitute with a conviction on the alternative charge of committing an indecent act with a child. Consequently , I sentence the appellant to ten (10) years imprisonment that will be effective from the date of conviction and sentence…”
10. The main issue therefore for determination is whether this court having pronounced itself thus on appeal still retain residual jurisdiction to grant the orders sought by the applicant herein? the answer to this question is in the negative as I take the view that any order made by this court will be kin to sitting on appeal against its own decision through the back door.
11. If the applicant is dissatisfied with the court’s determination aforesaid , the only recourse available for him is to file an appeal to the Court of Appeal and not to come back to the same court.
12. Further the issues raised by the applicant on his good character on record from the date of arrest, are based placed at the Power of mercy committee noting that having served only five years of the sentence cannot be said to be substantive part of the sentence and if this court was mindful in releasing the applicant on probation , nothing would have been easy than to say so at the time of the judgement on appeal.
13. It therefore follows and I find that this court lacks jurisdiction to open a matter that has been concluded at appeal and therefore find no merit on the application herein which I hereby dismiss noting that sexual offences is also not those that is covered under the “ decongestion of prison jurisdiction.”
14. In the interest of justice and having noted that the applicant was not represented before me, I grant the same leave to file a notice of appeal out of time.
15. And its ordered .
DATED SIGNED AND DELIVERED THIS 30 th DAY OF JUNE 2026
J.WAKIAGA
JUDGE
In the presence of :
C/A Irene
Ms Kariuki for state
The applicant in person
IN THE HIGH COURT OF KENYA AT MAKADARA
CRIMINASL DIVISION
CRIMINAL REVISION NO E206 OF 2025
MICHAEL MACHARIA MWANGI ………………………. APPLICANT
VERSUS
REPUBLIC …………………………………….……………. RESPONDENT
( being a revision from the original conviction in Makadara Chief Magistrates Court Criminal Case no 3603 of 2015)
RULING
1. By a Notice of Motion under certificate of urgency undated but filed on 2 nd October 2025 the applicant moved the court for an order that the court be pleased to order that he serves the remaining p[art of his sentence under non-custodial orders.
2. The application was supported by his affidavit in which it was deposed that he was tried convicted and sentenced to serve 30 years imprisonment for the offence of defilement contrary to section 8(2) of the sexual Offences Act.
3. That he appealed the said sentence and conviction to this court in High Court Criminal Appeal No E 079 of 2021 at Milimani wherein the dad conviction and sentence was set aside and substituted with a conviction and sentence of ten years for the alternative count of committing an indecent act with a child contrary to section 11(1) of the Act on 22 nd September 2022 which sentence3 was to run from the date of sentencing by the trial court.
4. He deposed further that the offence he was convicted of is a moral one and as such rehabilitative mode of sentencing would be appropriate for the remaining two years to enable him be fully reintegrated in society .
5. It was contended that the court has jurisdiction by dint of Article 23 of the constitution and that the court should under section 329 of the CPC call for a presentencing report and hear evidence in mitigation.
6. At the hearing herein, Ms Kariuki for the state submitted that the applicant filed an appeal to tis court sitting at Milimani in Criminal appeal No E 079 of 2021 which allowed the appeal and set aside the conviction and sentence and substituted the same with a conviction and sentence of ten years for indecent act with a child and that the applicant had only served five years. It was submitted that the applicant was out on bond during the period of his trial
7. The applicant submitted that he was seeking to be released on probation on account of his age noting that his sentence runs to the 5 th of February 2028.
DETERMINATION
8. The issue of resentencing and the jurisdiction of the High Court thereon is still in a state of confusion in the Kenyan criminal jurisprudence and unless the same is cured by way of practise directions courts shall continue to make contradictory orders and directions thereon depending on the judicial lining of each judge.
9. In this matter the applicant filed an appeal to this court in Criminal Appeal No E079 of 2021 and the court (Mutende J) found the following as facts:
“ 22. Upon medical examination , it was found that the child’s hymen was intact save that she had a tear at the posterior fourchette which is the thin fork-like fold of the skin that stretches at the bottom of the entrance of the vagina. The child alluded to the penis having been placed on her vagina. She did not state that there was penetration whether partial or complete. Therefore, it is doubtful if the offence of defilement was committed.
…….
24. The complainant was a minor who upon being taken through cross examination answered the questions appropriately. She was rescued from the house where the act was committed by members of public. PW2 found people who rescued her still at the scene of the incident. The learned trial magistrate who had opportunity of hearing her and observing her demeanour in compliance with section 124… was satisfied that she was truthful. From the explanation given by the complainant as to what happened , the assailants penis came into contact with her vagina ……..
32 As afore found I find that the prosecution proved the alternative count against the appellant. Therefore , set aside the conviction and sentence imposed on the main charge which I substitute with a conviction on the alternative charge of committing an indecent act with a child. Consequently , I sentence the appellant to ten (10) years imprisonment that will be effective from the date of conviction and sentence…”
10. The main issue therefore for determination is whether this court having pronounced itself thus on appeal still retain residual jurisdiction to grant the orders sought by the applicant herein? the answer to this question is in the negative as I take the view that any order made by this court will be kin to sitting on appeal against its own decision through the back door.
11. If the applicant is dissatisfied with the court’s determination aforesaid , the only recourse available for him is to file an appeal to the Court of Appeal and not to come back to the same court.
12. Further the issues raised by the applicant on his good character on record from the date of arrest, are based placed at the Power of mercy committee noting that having served only five years of the sentence cannot be said to be substantive part of the sentence and if this court was mindful in releasing the applicant on probation , nothing would have been easy than to say so at the time of the judgement on appeal.
13. It therefore follows and I find that this court lacks jurisdiction to open a matter that has been concluded at appeal and therefore find no merit on the application herein which I hereby dismiss noting that sexual offences is also not those that is covered under the “ decongestion of prison jurisdiction.”
14. In the interest of justice and having noted that the applicant was not represented before me, I grant the same leave to file a notice of appeal out of time.
15. And its ordered .
DATED SIGNED AND DELIVERED THIS 30 th DAY OF JUNE 2026
J.WAKIAGA
JUDGE
In the presence of :
C/A Irene
Ms Kariuki for state
The applicant in person