(Revision of sentence from HCCR Petition No. 87 of 2018 emanating from Mombasa Court of Appeal Criminal Appeal No. 275 of 2002, arising from the original conviction in Mombasa Criminal Case No. 3304 of 1997)
The Notice of Motion before this Court is brought under Section 364(1)(b) of the Criminal Procedure Code . Through the said application, the Applicant seeks a review of his sentence.
The Applicant was charged and convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code in Mombasa Chief Magistrate’s Criminal Case No. 3304 of 1997 and was sentenced to death. His appeal to the High Court was dismissed. He thereafter preferred Mombasa Court of Appeal Criminal Appeal No. 275 of 2002 , which upheld both the conviction and sentence.
Subsequently, the Applicant filed Mombasa High Court Petition No. 87 of 2018 , and in a judgment delivered on 5th November 2019 , Hon. Justice E.K.O. Ogola set aside the death sentence and substituted it with a custodial sentence of fifty (50) years’ imprisonment , to run from the date of arrest.
The Applicant now prays that the substituted sentence be reviewed.
I have considered the application, the affidavit in support, the submissions on record, and the sentence review report filed herein. The issue for determination is whether this Court has jurisdiction and whether the application is merited .
Jurisdiction of the Court
It is now well settled that the High Court cannot review, vary, or set aside a decision rendered by another judge of concurrent jurisdiction . To do so would amount to sitting on appeal against a decision of a court of equal status, which is impermissible in law. This principle safeguards judicial order, certainty, and finality.
In Republic v Karisa Chengo & 2 Others [2017] eKLR , the Supreme Court underscored the constitutional hierarchy of courts and held that the High Court cannot exercise appellate or supervisory jurisdiction over decisions of judges of equal rank.
Similarly, in Joseph Nduvi Mbuvi v Republic [2019] eKLR , the Court of Appeal reaffirmed that a judge of the High Court lacks jurisdiction to revisit or review a decision of another High Court judge, emphasizing that such practice would undermine judicial comity and the administration of justice.
Accordingly, this Court lacks jurisdiction to review or interfere with the sentence imposed by Hon. Justice E.K.O. Ogola , and the proper avenue available to the Applicant, if aggrieved, lies with the Court of Appeal under Article 164(3) of the Constitution .
Effect of Muruatetu
In Francis Karioko Muruatetu & Another v Republic (Muruatetu No. 3) , the Supreme Court emphatically clarified that the decision in Muruatetu No. 1 applies strictly to the offence of murder under section 204 of the Penal Code and does not automatically extend to other capital offences such as robbery with violence. The Court further held that resentencing is not automatic , and an applicant must demonstrate exceptional or overwhelming circumstances warranting further judicial intervention.
The record shows that when the death sentence was set aside in Petition No. 87 of 2018 , the sentencing court considered the Applicant’s mitigation and exercised judicial discretion in substituting the death penalty with a definite custodial term of fifty (50) years. The Applicant has not demonstrated that the sentencing court acted on wrong principles, ignored relevant mitigating factors, or imposed a sentence that is manifestly excessive.
No new, compelling, or overwhelming reasons have been placed before this Court to justify interference with the sentence as imposed. Mere dissatisfaction with the length of the sentence does not meet the threshold set by the Supreme Court in Muruatetu (No. 3) .
Conclusion
In light of the foregoing, this Court finds that it lacks jurisdiction to review the sentence imposed by a court of concurrent jurisdiction. In any event, the Applicant has failed to establish any legal or factual basis warranting interference with the sentence.
The application is therefore devoid of merit and is hereby dismissed .
DELIVERED, DATED and SIGNED at MOMBASA this 18th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:
THE APPLICANT
MR NGIRI AND MR SIRIMA FOR THE STATE
BEBORA CT ASSISTANT
The Notice of Motion before this Court is brought under Section 364(1)(b) of the Criminal Procedure Code . Through the said application, the Applicant seeks a review of his sentence.
The Applicant was charged and convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code in Mombasa Chief Magistrate’s Criminal Case No. 3304 of 1997 and was sentenced to death. His appeal to the High Court was dismissed. He thereafter preferred Mombasa Court of Appeal Criminal Appeal No. 275 of 2002 , which upheld both the conviction and sentence.
Subsequently, the Applicant filed Mombasa High Court Petition No. 87 of 2018 , and in a judgment delivered on 5th November 2019 , Hon. Justice E.K.O. Ogola set aside the death sentence and substituted it with a custodial sentence of fifty (50) years’ imprisonment , to run from the date of arrest.
The Applicant now prays that the substituted sentence be reviewed.
I have considered the application, the affidavit in support, the submissions on record, and the sentence review report filed herein. The issue for determination is whether this Court has jurisdiction and whether the application is merited .
Jurisdiction of the Court
It is now well settled that the High Court cannot review, vary, or set aside a decision rendered by another judge of concurrent jurisdiction . To do so would amount to sitting on appeal against a decision of a court of equal status, which is impermissible in law. This principle safeguards judicial order, certainty, and finality.
In Republic v Karisa Chengo & 2 Others [2017] eKLR , the Supreme Court underscored the constitutional hierarchy of courts and held that the High Court cannot exercise appellate or supervisory jurisdiction over decisions of judges of equal rank.
Similarly, in Joseph Nduvi Mbuvi v Republic [2019] eKLR , the Court of Appeal reaffirmed that a judge of the High Court lacks jurisdiction to revisit or review a decision of another High Court judge, emphasizing that such practice would undermine judicial comity and the administration of justice.
Accordingly, this Court lacks jurisdiction to review or interfere with the sentence imposed by Hon. Justice E.K.O. Ogola , and the proper avenue available to the Applicant, if aggrieved, lies with the Court of Appeal under Article 164(3) of the Constitution .
Effect of Muruatetu
In Francis Karioko Muruatetu & Another v Republic (Muruatetu No. 3) , the Supreme Court emphatically clarified that the decision in Muruatetu No. 1 applies strictly to the offence of murder under section 204 of the Penal Code and does not automatically extend to other capital offences such as robbery with violence. The Court further held that resentencing is not automatic , and an applicant must demonstrate exceptional or overwhelming circumstances warranting further judicial intervention.
The record shows that when the death sentence was set aside in Petition No. 87 of 2018 , the sentencing court considered the Applicant’s mitigation and exercised judicial discretion in substituting the death penalty with a definite custodial term of fifty (50) years. The Applicant has not demonstrated that the sentencing court acted on wrong principles, ignored relevant mitigating factors, or imposed a sentence that is manifestly excessive.
No new, compelling, or overwhelming reasons have been placed before this Court to justify interference with the sentence as imposed. Mere dissatisfaction with the length of the sentence does not meet the threshold set by the Supreme Court in Muruatetu (No. 3) .
Conclusion
In light of the foregoing, this Court finds that it lacks jurisdiction to review the sentence imposed by a court of concurrent jurisdiction. In any event, the Applicant has failed to establish any legal or factual basis warranting interference with the sentence.
The application is therefore devoid of merit and is hereby dismissed .
DELIVERED, DATED and SIGNED at MOMBASA this 18th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:
THE APPLICANT
MR NGIRI AND MR SIRIMA FOR THE STATE
BEBORA CT ASSISTANT