INTRODUCTION
Background.
1. The Applicant Presiah Mutavu Makau was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code before the High Court at Nairobi.
2. The particulars of the offence were that on the 2 nd May, 2023, at Kiambiu Area, California, in Kamkunji Sub-County within Nairobi County, the Appellant murdered Tylon Adoya Ahinga.
Plea, Conviction and Sentence.
3. The Applicant pleaded guilty to the lesser offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
4. On 1 st April,2025, Hon.Justice Kanyi Kimondo convicted the Applicant on her plea of guilty and sentenced her to six (6) years imprisonment.
5. The Applicant filed a Misc.Application on 14 th February, 2026 seeking a non-custodial sentence for the remainder of one (1) year and four (4) months period of imprisonment.
6. The applicant urged the court to consider placing her under probation order for the remaining period.
7. She argued that the provision of SECTION 4(B) OF PROBATION OF OFFENDER ACT CAP 64 LAWS OF KENYA to be read in a manner that comply with the United Nations Standard Minimum Rules for Non-custodial Measure (The Tokyo Rules) Paragraph 2.1 which provides for the scope of non-custodial measures to apply to all persons subject to prosecution, trial, or the execution of a sentence, at all stages of administration of justice, since international laws form part of our Laws under Article 2(6)(b)(c).
8. The applicant invoked the judiciary policy of decongesting the prisons a further matter to consider in determining her application.
Respondent’s Submissions
9. The Director of Public Prosecution opposed the Application, and submitted that this Court lacks jurisdiction to issue the orders for Review of non-custodial sentence and placed reliance on the case of Ntusa vs. Republic . The DPP further cited Section 4(2) of the Probation of Offenders Act, that the same does not donate power to the High Court to revise a sentence through revision application.
10. Further, the Director of Public Prosecution submitted that the High Court, sitting on a revision of application cannot revise the sentence of another Court of concurrent jurisdiction and that the Applicant’s remedy if any, lay in the Court of Appeal.
11. On whether this court can substitute the present custodial sentence with a non-custodial sentence the DPP submitted that the same is a preserve for a non -serious offenses and not the case of manslaughter.
ANALYSIS AND DETERMINATION
12. Having considered the Application, the response by the Director of Public Prosecution and the applicable Law, this Court determines that the cardinal issue for determination is whether this court has the Jurisdiction to grant the orders sought.
13. Jurisdiction is the foundation upon which a court exercises its authority. In Samwel Kamau Macharia Versus KCB & 2 others [2012] eklr the Supreme Court stated that:-
“ A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. ”
14. The supervisory and revisionary jurisdiction of the High Court as stipulated under Article 165 (6) and (7) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code is confined to the supervision of subordinate courts and does not extend to reviewing, varying or revising decisions made by another Judge of the High Court exercising concurrent jurisdiction.
15. The Hon. Mr. Justice Kimondo having rendered the sentence, if this court was to entertain the matter, it would be acting without jurisdiction and any orders resulting therefrom would be orders in vain.
16. Having found that this Court lacks jurisdiction to entertain the Application, I need not bother reviewing any other aspect of the application.
17. The application is therefore dismissed for want of jurisdiction.
18. It is so ordered.
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Background.
1. The Applicant Presiah Mutavu Makau was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code before the High Court at Nairobi.
2. The particulars of the offence were that on the 2 nd May, 2023, at Kiambiu Area, California, in Kamkunji Sub-County within Nairobi County, the Appellant murdered Tylon Adoya Ahinga.
Plea, Conviction and Sentence.
3. The Applicant pleaded guilty to the lesser offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
4. On 1 st April,2025, Hon.Justice Kanyi Kimondo convicted the Applicant on her plea of guilty and sentenced her to six (6) years imprisonment.
5. The Applicant filed a Misc.Application on 14 th February, 2026 seeking a non-custodial sentence for the remainder of one (1) year and four (4) months period of imprisonment.
6. The applicant urged the court to consider placing her under probation order for the remaining period.
7. She argued that the provision of SECTION 4(B) OF PROBATION OF OFFENDER ACT CAP 64 LAWS OF KENYA to be read in a manner that comply with the United Nations Standard Minimum Rules for Non-custodial Measure (The Tokyo Rules) Paragraph 2.1 which provides for the scope of non-custodial measures to apply to all persons subject to prosecution, trial, or the execution of a sentence, at all stages of administration of justice, since international laws form part of our Laws under Article 2(6)(b)(c).
8. The applicant invoked the judiciary policy of decongesting the prisons a further matter to consider in determining her application.
Respondent’s Submissions
9. The Director of Public Prosecution opposed the Application, and submitted that this Court lacks jurisdiction to issue the orders for Review of non-custodial sentence and placed reliance on the case of Ntusa vs. Republic . The DPP further cited Section 4(2) of the Probation of Offenders Act, that the same does not donate power to the High Court to revise a sentence through revision application.
10. Further, the Director of Public Prosecution submitted that the High Court, sitting on a revision of application cannot revise the sentence of another Court of concurrent jurisdiction and that the Applicant’s remedy if any, lay in the Court of Appeal.
11. On whether this court can substitute the present custodial sentence with a non-custodial sentence the DPP submitted that the same is a preserve for a non -serious offenses and not the case of manslaughter.
ANALYSIS AND DETERMINATION
12. Having considered the Application, the response by the Director of Public Prosecution and the applicable Law, this Court determines that the cardinal issue for determination is whether this court has the Jurisdiction to grant the orders sought.
13. Jurisdiction is the foundation upon which a court exercises its authority. In Samwel Kamau Macharia Versus KCB & 2 others [2012] eklr the Supreme Court stated that:-
“ A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. ”
14. The supervisory and revisionary jurisdiction of the High Court as stipulated under Article 165 (6) and (7) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code is confined to the supervision of subordinate courts and does not extend to reviewing, varying or revising decisions made by another Judge of the High Court exercising concurrent jurisdiction.
15. The Hon. Mr. Justice Kimondo having rendered the sentence, if this court was to entertain the matter, it would be acting without jurisdiction and any orders resulting therefrom would be orders in vain.
16. Having found that this Court lacks jurisdiction to entertain the Application, I need not bother reviewing any other aspect of the application.
17. The application is therefore dismissed for want of jurisdiction.
18. It is so ordered.
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