The 1st Respondent filed a revision application dated 19/09/2024 challenging the decision of the 2nd Respondent and that of the trial court to withdraw charges against the Applicant. By a ruling dated 20/02/2025 the court allowed the said application and found that the decision by the 2 nd respondent to withdraw the charges against the applicant was not regular or proper.
The applicant then filed the current application seeking to review the said orders. They submitted that the said ruling adversely affected her rights and fundamental freedoms in the Bill of Rights and the same were denied, violated, infringed . Further that the impugned order was obtained after the 1st Respondent deliberately blocked the Applicant from the revision proceedings thereby condemning her unheard.
The applicant argued that the principles of Due Process are a fundamental precept of the law enshrined under Article 25 (c) and 50 (2) of the Constitution of Kenya 2010 that provide for the right to a fair trial which imposes a duty on the Court to guarantee parties to proceedings procedural justice and fairness. As such Courts should not to deprive any person of their right.
Therefore, they said, the Applicant was not treated fairly, efficiently and effectively in the administration of justice when the 1st Respondent prosecuted the revision application.
Finally, the applicant also argued that the Mandate of the Director of Public Prosecutions to exercise state its mandate should not be usurped.
The Respondent’s position was that the Application is premised on articles 25( c), 47,48,50 &159 of the Constitution of Kenya(2010), Section 4 of the Fair Administrative Actions Act,2015, Section 80 of the Civil Procedure Act Cap 21, Order 45 Rules 1 of the Civil procedure Rules 2010,Section 364(2) of the Criminal Procedure Code and all other enabling powers and provisions of the laws.
That 364 of the Criminal Procedure Code outlines the Power of the High Court under article 165 of the Constitution and Section 362 of the Criminal Procedure Code and states how the powers are to be exercised.
That the Jurisdiction of the High Court to exercise review of a decision in criminal proceedings as donated by section 362 and 364 of the Criminal Procedure is limited to review orders/decisions of Subordinate Courts but not its own decisions.
They cited the case of Langat v Republic (Miscellaneous Criminal Application E008 of 2023) [2024] KEHC 9572 (KLR) (25 July 2024), where the Court at Para 8 stated as follows: “…As a general rule, the High Court can only review the Judgment of a Subordinate Court as provided for under sections 362 to 364 of the Criminal Procedure Code. The Court therefore does not have jurisdiction to review its own decision…”
Similarly in the case of Daniel Otieno Oracha vs. Republic (2019)eKLR, the Petitioner had applied for review of a sentence imposed by a court of concurrent jurisdiction and Aburili J held that: “..The law abhors the 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 an appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise…
They also argued that upon delivery of its Ruling on 20th February 2025, this court became functus officio, and the proper forum that the Applicants ought to present their grievance should have been the Court of Appeal in the event she was dissatisfied with the court’s decision.
As to whether this court can rely on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, they submitted that these provisions are specifically focused on the review of civil judgments and orders. Thus they are intended to address situations where a party believes there was an error or mistake in a civil case that requires reconsideration.
Analysis and Determination:
Section 362 of the Criminal Procedure Code provides that :“ The High Court may call for and examine the record of any criminal proceedings before any 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 any proceedings of any such subordinate court.
The section gives the court jurisdiction to review orders issued by the sub-ordinate court for the purpose of satisfying itself as to the correctness, legality and or propriety of any finding, sentence or order recorded or passed and to the regularity of any proceedings .
Section 364 of the Criminal Procedure Code on the other hand provides for the powers of the Court on Revision. It provides :-“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –
(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence
(b)in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296 (2) of the Penal Code , the Prevention of Terrorism Act , the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti- Money Laundering Act , the Sexual Offences Act and the Counter-Trafficking in Persons Act , where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4). Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5). When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
15. In this case the respondent was right in pointing out that section 364 of the CPC deals with revisions by the high court under its supervisory jurisdiction of the subordinate court as provided under Article 165(6) of the Constitution . The Article provides as follows:-
“The High Court has supervisory jurisdiction over the sub-ordinate Courts and over any person exercising a judicial or quasi judicial function but not over a superior court .”
16.This supervisory jurisdiction is expounded unclear Section 362 and 364 of the Criminal Procedure Code , (supra).
In a persuasive decision by Justice Ondunga (as he then was) in Joseph Nduvi Mbuvi v Republic (2019) eKLR, the Judge stated:-“ In my considered view the object of revisional jurisdiction of the High Court is to enable the High Court in appropriate cases whether during the pendency of the proceedings in the Sub-ordinate Courts or at the conclusion of the proceeding to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing should be proceeded with. In other words, the High Court revisionary jurisdiction includes ensuring that where the proceedings in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such Subordinate Court as well.”
17.It has also been held that the principle which will guide the high Court when applying Section 362 (supra) include;
- Where the decision is grossly erroneous
-Where there is no compliance with the provisions of the law.
-Where the finding of fact affecting a decision is not based on evidence or it is a result of misleading or non-ready of the evidence on record
-Where material evidence on the parties is not considered.
Where judicial discretion is exercised arbitrarily or perversely
If the lower court ignores facts and tries the accused of a lesser offence .see Prosecutor v Stephen Lesinko (2018) eKLR, Nyakundi J.
18.Thus the jurisdiction of the High Court on Revision is to correct manifest irregularities and illegalities over the subordinate court or bodies .
19. As to whether the civil provisions Justice Mutende had this to say “ The process of revision and judicial review are both pursuant to the courts special power under Article 165 where the High court exercises superintendence over the subordinate courts. The main difference is that the operating law in judicial review is the Law reform Act and the procedural rules of Order 53 of the Civil Procedure Rules while the criminal court is given jurisdiction under Section 362 and 364 of the Criminal Procedure Code.
19.The applicants are clear that they moved this court in its capacity as a revisionary court under Section 362 as read with Section 364 of the Criminal Procedure Code. This court therefore has jurisdiction to determine the application and it would be a defeatist argument to strike out the matter for want of jurisdiction or to refer parties to the Judicial Review, Division of the High Court. Similarly, the 3 rd respondent’s contention that the Civil Procedure Rules ought to be invoked in the process of seeking revision is misplaced. Sphikas & another v Kaluma & 2 others; (Criminal Revision E062 of 2021) [2022] KEHC 12669 (KLR) (Crim)
20. I therefore find that the importation of the civil procedure in this application was improper. The applicant ought to move to the court of appeal if dissatisfied.
21. As to the issue that the applicant was not heard, or was blocked, the procedure is also clear. The court may simply call for file and check for the appropriateness, legality and regularity then issue the orders. In the instant case, the court gave a chance to both respondents to file responses and submissions.
22. Accordingly I find that there was no breach.
23. The final issue was whether the mandate of the dpp was interfered with.
. Article 165 (6) & (7) of the Constitution provides that: (6).The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7).For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
24. In the case of Prosecutor vs Stephen Lesinko [2018] eKLR, the court held that Judicial review is a separate limb of the High Court’s supervisory jurisdiction. That : Judicial Review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.
25. In the ruling in issue, the court examined the willy- nilly approach by the prosecutorial body and found it to be wanting.
26. For the above reasons I find that the current application lacks merit and it is dismissed.
27.The matter to go back to the trial court for hearing.
28. No orders as to costs.
Dated signed and delivered this 24 th day of July 2025
Wendy Kagendo
Judge
IN THE PRESENCE OF
MR MANGALE FOR THE APPLICANT
MR RENEE FOR THE FIRST RESPONDENT
MR NGIRI FOR THE 2 ND RESPONDENT
AS19nht
19. AS
The applicant then filed the current application seeking to review the said orders. They submitted that the said ruling adversely affected her rights and fundamental freedoms in the Bill of Rights and the same were denied, violated, infringed . Further that the impugned order was obtained after the 1st Respondent deliberately blocked the Applicant from the revision proceedings thereby condemning her unheard.
The applicant argued that the principles of Due Process are a fundamental precept of the law enshrined under Article 25 (c) and 50 (2) of the Constitution of Kenya 2010 that provide for the right to a fair trial which imposes a duty on the Court to guarantee parties to proceedings procedural justice and fairness. As such Courts should not to deprive any person of their right.
Therefore, they said, the Applicant was not treated fairly, efficiently and effectively in the administration of justice when the 1st Respondent prosecuted the revision application.
Finally, the applicant also argued that the Mandate of the Director of Public Prosecutions to exercise state its mandate should not be usurped.
The Respondent’s position was that the Application is premised on articles 25( c), 47,48,50 &159 of the Constitution of Kenya(2010), Section 4 of the Fair Administrative Actions Act,2015, Section 80 of the Civil Procedure Act Cap 21, Order 45 Rules 1 of the Civil procedure Rules 2010,Section 364(2) of the Criminal Procedure Code and all other enabling powers and provisions of the laws.
That 364 of the Criminal Procedure Code outlines the Power of the High Court under article 165 of the Constitution and Section 362 of the Criminal Procedure Code and states how the powers are to be exercised.
That the Jurisdiction of the High Court to exercise review of a decision in criminal proceedings as donated by section 362 and 364 of the Criminal Procedure is limited to review orders/decisions of Subordinate Courts but not its own decisions.
They cited the case of Langat v Republic (Miscellaneous Criminal Application E008 of 2023) [2024] KEHC 9572 (KLR) (25 July 2024), where the Court at Para 8 stated as follows: “…As a general rule, the High Court can only review the Judgment of a Subordinate Court as provided for under sections 362 to 364 of the Criminal Procedure Code. The Court therefore does not have jurisdiction to review its own decision…”
Similarly in the case of Daniel Otieno Oracha vs. Republic (2019)eKLR, the Petitioner had applied for review of a sentence imposed by a court of concurrent jurisdiction and Aburili J held that: “..The law abhors the 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 an appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise…
They also argued that upon delivery of its Ruling on 20th February 2025, this court became functus officio, and the proper forum that the Applicants ought to present their grievance should have been the Court of Appeal in the event she was dissatisfied with the court’s decision.
As to whether this court can rely on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, they submitted that these provisions are specifically focused on the review of civil judgments and orders. Thus they are intended to address situations where a party believes there was an error or mistake in a civil case that requires reconsideration.
Analysis and Determination:
Section 362 of the Criminal Procedure Code provides that :“ The High Court may call for and examine the record of any criminal proceedings before any 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 any proceedings of any such subordinate court.
The section gives the court jurisdiction to review orders issued by the sub-ordinate court for the purpose of satisfying itself as to the correctness, legality and or propriety of any finding, sentence or order recorded or passed and to the regularity of any proceedings .
Section 364 of the Criminal Procedure Code on the other hand provides for the powers of the Court on Revision. It provides :-“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –
(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence
(b)in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296 (2) of the Penal Code , the Prevention of Terrorism Act , the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti- Money Laundering Act , the Sexual Offences Act and the Counter-Trafficking in Persons Act , where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4). Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5). When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
15. In this case the respondent was right in pointing out that section 364 of the CPC deals with revisions by the high court under its supervisory jurisdiction of the subordinate court as provided under Article 165(6) of the Constitution . The Article provides as follows:-
“The High Court has supervisory jurisdiction over the sub-ordinate Courts and over any person exercising a judicial or quasi judicial function but not over a superior court .”
16.This supervisory jurisdiction is expounded unclear Section 362 and 364 of the Criminal Procedure Code , (supra).
In a persuasive decision by Justice Ondunga (as he then was) in Joseph Nduvi Mbuvi v Republic (2019) eKLR, the Judge stated:-“ In my considered view the object of revisional jurisdiction of the High Court is to enable the High Court in appropriate cases whether during the pendency of the proceedings in the Sub-ordinate Courts or at the conclusion of the proceeding to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing should be proceeded with. In other words, the High Court revisionary jurisdiction includes ensuring that where the proceedings in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such Subordinate Court as well.”
17.It has also been held that the principle which will guide the high Court when applying Section 362 (supra) include;
- Where the decision is grossly erroneous
-Where there is no compliance with the provisions of the law.
-Where the finding of fact affecting a decision is not based on evidence or it is a result of misleading or non-ready of the evidence on record
-Where material evidence on the parties is not considered.
Where judicial discretion is exercised arbitrarily or perversely
If the lower court ignores facts and tries the accused of a lesser offence .see Prosecutor v Stephen Lesinko (2018) eKLR, Nyakundi J.
18.Thus the jurisdiction of the High Court on Revision is to correct manifest irregularities and illegalities over the subordinate court or bodies .
19. As to whether the civil provisions Justice Mutende had this to say “ The process of revision and judicial review are both pursuant to the courts special power under Article 165 where the High court exercises superintendence over the subordinate courts. The main difference is that the operating law in judicial review is the Law reform Act and the procedural rules of Order 53 of the Civil Procedure Rules while the criminal court is given jurisdiction under Section 362 and 364 of the Criminal Procedure Code.
19.The applicants are clear that they moved this court in its capacity as a revisionary court under Section 362 as read with Section 364 of the Criminal Procedure Code. This court therefore has jurisdiction to determine the application and it would be a defeatist argument to strike out the matter for want of jurisdiction or to refer parties to the Judicial Review, Division of the High Court. Similarly, the 3 rd respondent’s contention that the Civil Procedure Rules ought to be invoked in the process of seeking revision is misplaced. Sphikas & another v Kaluma & 2 others; (Criminal Revision E062 of 2021) [2022] KEHC 12669 (KLR) (Crim)
20. I therefore find that the importation of the civil procedure in this application was improper. The applicant ought to move to the court of appeal if dissatisfied.
21. As to the issue that the applicant was not heard, or was blocked, the procedure is also clear. The court may simply call for file and check for the appropriateness, legality and regularity then issue the orders. In the instant case, the court gave a chance to both respondents to file responses and submissions.
22. Accordingly I find that there was no breach.
23. The final issue was whether the mandate of the dpp was interfered with.
. Article 165 (6) & (7) of the Constitution provides that: (6).The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7).For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
24. In the case of Prosecutor vs Stephen Lesinko [2018] eKLR, the court held that Judicial review is a separate limb of the High Court’s supervisory jurisdiction. That : Judicial Review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.
25. In the ruling in issue, the court examined the willy- nilly approach by the prosecutorial body and found it to be wanting.
26. For the above reasons I find that the current application lacks merit and it is dismissed.
27.The matter to go back to the trial court for hearing.
28. No orders as to costs.
Dated signed and delivered this 24 th day of July 2025
Wendy Kagendo
Judge
IN THE PRESENCE OF
MR MANGALE FOR THE APPLICANT
MR RENEE FOR THE FIRST RESPONDENT
MR NGIRI FOR THE 2 ND RESPONDENT
AS19nht
19. AS