1. The Applicant herein, vide his notice of motion dated 27th January, 2026 seeks an order for the review of his sentence, so that he serves the remainder of his sentence on community service orders.
2. The grounds upon which the Applicant bases his application are that he expresses remorse and is duly rehabilitated.
3. In his supporting affidavit expounding the above grounds, the Applicant deposes that he was convicted and sentenced to serve 15 years’ imprisonment for the offence of defilement and that he pursued an appeal and his sentence was reduced to 10 years imprisonment. He states that as at the time of filing his motion, he had served 3 years and 8 months and that with remission in sight, he remains with less than 3 years to serve and in his view qualifies for a community service orders sentence.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant’s request to be enrolled for a community service order should be dismissed.
5. Counsel states that the Applicant was lawfully convicted of the offence of defilement and initially sentenced to 15 years’ imprisonment, which was later reduced on appeal to 10 years, with the period spent in pre-conviction remand duly accounted for.
6. Ms. Muema emphasizes that this Court has already exercised its appellate jurisdiction and delivered a final judgment, and is therefore functus officio and no fresh circumstances have been shown that would justify revisiting the sentence. She avers that the sentence imposed was lawful, proportionate and properly considered the Applicant’s mitigation, the nature and gravity of the offence and the need to protect the public.
7. The learned Prosecution Counsel further contends that a non-custodial sentence, such as a community service order, would be wholly inadequate for an offence involving the sexual exploitation of a child and would contravene the Sexual Offences Act and the Constitution.
8. Accordingly, Ms. Muema urges the Court to dismiss the Applicant’s application with costs.
9. Having considered the application, the affidavits filed by the parties and the respective positions taken by the Applicant and the Respondent, two issues arise for determination.
10. The first is whether this Court has jurisdiction to review or vary the sentence imposed upon the Applicant by a court of concurrent jurisdiction. The second issue is whether the Applicant has established sufficient grounds to warrant the substitution of the custodial sentence with a non-custodial sentence such as probation or community service orders.
11. I will proceed to determine the two issues together as they are closely related.
12. The Applicant seeks a review of the sentence imposed upon him and urges the Court to substitute the custodial sentence with a non-custodial one in the form of probation or community service orders on the basis that he is remorseful. He however expressly states that he does not challenge either the conviction or the sentence imposed by the trial court.
13. The Respondent, on the other hand, opposes the application on the ground that this Court lacks jurisdiction to review or vary a sentence that was lawfully imposed by a court of concurrent jurisdiction. According to the State, the Applicant was tried, convicted and sentenced by the trial/lower Court and that the High Court on appeal reduced the sentence to 10 years imprisonment and that this court has no jurisdiction to review or alter the sentence of a court of concurrent jurisdiction.
14. Jurisdiction is a fundamental issue which must be determined at the earliest opportunity since a court cannot take any further step where it lacks the requisite authority to entertain a matter.
15. It is a settled principle that a court of concurrent jurisdiction cannot sit on appeal over its own decision. Consequently, the High Court cannot review or vary a sentence that was imposed by another High Court judge exercising the same jurisdiction.
16. In the present case, the record shows that the Applicant was charged with the offence of defilement and upon conclusion of the trial he was convicted and sentenced to 15 years imprisonment. He appealed to the High Court and his sentence was reduced to 10 years imprisonment.
17. Although the Applicant urges the Court to consider his remorse and substitute the custodial sentence with a non-custodial one, such a request would inevitably require this Court to revisit and interfere with a sentence that was lawfully imposed by a court of equal jurisdiction. To do so would effectively amount to this Court sitting on appeal over a decision of a court of concurrent jurisdiction, which is impermissible in law.
18. In the circumstances, I am persuaded by the Respondent’s position that this Court lacks jurisdiction to review or vary the sentence imposed upon the Applicant. Consequently, the question whether the Applicant has established sufficient grounds to warrant the substitution of the custodial sentence with a non-custodial one cannot arise before this Court.
19. The proper recourse available to the Applicant, should he be aggrieved by the sentence imposed, is to challenge the same before the Court of Appeal through the appellate process provided for under the law.
20. Accordingly, I find that the present application is incompetent for want of jurisdiction and the same is hereby dismissed.
21. It is so ordered.
22. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The grounds upon which the Applicant bases his application are that he expresses remorse and is duly rehabilitated.
3. In his supporting affidavit expounding the above grounds, the Applicant deposes that he was convicted and sentenced to serve 15 years’ imprisonment for the offence of defilement and that he pursued an appeal and his sentence was reduced to 10 years imprisonment. He states that as at the time of filing his motion, he had served 3 years and 8 months and that with remission in sight, he remains with less than 3 years to serve and in his view qualifies for a community service orders sentence.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant’s request to be enrolled for a community service order should be dismissed.
5. Counsel states that the Applicant was lawfully convicted of the offence of defilement and initially sentenced to 15 years’ imprisonment, which was later reduced on appeal to 10 years, with the period spent in pre-conviction remand duly accounted for.
6. Ms. Muema emphasizes that this Court has already exercised its appellate jurisdiction and delivered a final judgment, and is therefore functus officio and no fresh circumstances have been shown that would justify revisiting the sentence. She avers that the sentence imposed was lawful, proportionate and properly considered the Applicant’s mitigation, the nature and gravity of the offence and the need to protect the public.
7. The learned Prosecution Counsel further contends that a non-custodial sentence, such as a community service order, would be wholly inadequate for an offence involving the sexual exploitation of a child and would contravene the Sexual Offences Act and the Constitution.
8. Accordingly, Ms. Muema urges the Court to dismiss the Applicant’s application with costs.
9. Having considered the application, the affidavits filed by the parties and the respective positions taken by the Applicant and the Respondent, two issues arise for determination.
10. The first is whether this Court has jurisdiction to review or vary the sentence imposed upon the Applicant by a court of concurrent jurisdiction. The second issue is whether the Applicant has established sufficient grounds to warrant the substitution of the custodial sentence with a non-custodial sentence such as probation or community service orders.
11. I will proceed to determine the two issues together as they are closely related.
12. The Applicant seeks a review of the sentence imposed upon him and urges the Court to substitute the custodial sentence with a non-custodial one in the form of probation or community service orders on the basis that he is remorseful. He however expressly states that he does not challenge either the conviction or the sentence imposed by the trial court.
13. The Respondent, on the other hand, opposes the application on the ground that this Court lacks jurisdiction to review or vary a sentence that was lawfully imposed by a court of concurrent jurisdiction. According to the State, the Applicant was tried, convicted and sentenced by the trial/lower Court and that the High Court on appeal reduced the sentence to 10 years imprisonment and that this court has no jurisdiction to review or alter the sentence of a court of concurrent jurisdiction.
14. Jurisdiction is a fundamental issue which must be determined at the earliest opportunity since a court cannot take any further step where it lacks the requisite authority to entertain a matter.
15. It is a settled principle that a court of concurrent jurisdiction cannot sit on appeal over its own decision. Consequently, the High Court cannot review or vary a sentence that was imposed by another High Court judge exercising the same jurisdiction.
16. In the present case, the record shows that the Applicant was charged with the offence of defilement and upon conclusion of the trial he was convicted and sentenced to 15 years imprisonment. He appealed to the High Court and his sentence was reduced to 10 years imprisonment.
17. Although the Applicant urges the Court to consider his remorse and substitute the custodial sentence with a non-custodial one, such a request would inevitably require this Court to revisit and interfere with a sentence that was lawfully imposed by a court of equal jurisdiction. To do so would effectively amount to this Court sitting on appeal over a decision of a court of concurrent jurisdiction, which is impermissible in law.
18. In the circumstances, I am persuaded by the Respondent’s position that this Court lacks jurisdiction to review or vary the sentence imposed upon the Applicant. Consequently, the question whether the Applicant has established sufficient grounds to warrant the substitution of the custodial sentence with a non-custodial one cannot arise before this Court.
19. The proper recourse available to the Applicant, should he be aggrieved by the sentence imposed, is to challenge the same before the Court of Appeal through the appellate process provided for under the law.
20. Accordingly, I find that the present application is incompetent for want of jurisdiction and the same is hereby dismissed.
21. It is so ordered.
22. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.