1. The Applicant herein, vide his undated notice of motion seeks an order for the review of his sentence, so that he be placed on a probation or community service orders sentence.
2. The grounds upon which the Applicant bases his application are that he expresses remorse.
3. In his supporting affidavit, the Applicant deposes that he was convicted and sentenced to serve 10 years’ imprisonment for the offence of murder He states that he does not challenge either the conviction or the sentence imposed, but respectfully seeks consideration for a non-custodial sentence in the form of probation or a community service order.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in High Court Criminal Case No. 9 of 2020 before the High Court presided over by Aburili, J., in relation to the death of Gradus Otieno Akongo on 11th March 2020.
5. Counsel states that upon conclusion of a full trial, the High Court delivered its judgement on 27th March, 2024, convicting him of the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code pursuant to Section 179 of the Criminal Procedure Code.
6. Ms. Muema further deposes that following the conviction, the Applicant was sentenced by the High Court, but in the present application he has failed to disclose that he filed an appeal against either his conviction or the sentence imposed.
7. It is the learned Prosecution Counsel’s position that the High Court lacks jurisdiction to review or vary a sentence lawfully imposed by a court of concurrent jurisdiction, particularly where the same High Court exercised its original criminal jurisdiction in trying, convicting and sentencing the Applicant. She avers that the proper avenue for challenging the conviction or sentence is by way of an appeal to the Court of Appeal and not by an application before the same court that rendered the decision, as a court cannot sit on appeal over its own judgement.
8. Ms. Muema adds that allowing such an application would violate the established principle that a court of concurrent jurisdiction cannot review its own decision and would amount to an abuse of the court process.
9. The learned Prosecution Counsel further states that the Applicant has not disclosed whether he lodged an appeal before the Court of Appeal, which is the proper forum for challenging both conviction and sentence imposed by the High Court. Counsel contends that if the Applicant is aggrieved by the sentence imposed by the High Court, his recourse lies in filing an appeal within the time prescribed by law rather than seeking review before the same court.
10. The State, through Ms. Muema’s affidavit maintains that the judgement delivered on 27th March, 2024 and the subsequent sentence imposed by the High Court remain final and binding unless set aside or varied by a superior court on appeal. She further avers that allowing the Applicant to re-litigate the issue of sentence before the same court would offend the principles of finality in litigation and res judicata.
11. Ms. Muema emphasizes that the Applicant was convicted of the serious offence of manslaughter involving the unlawful killing of the deceased after the court found that the prosecution had proved all elements of unlawful killing except malice aforethought. She refers to the evidence on record in the trial file showing that the deceased sustained severe injuries, including multiple cut wounds, a deep cut wound on the left wrist severing major bones, a deep cut wound on the left elbow severing the elbow, a deep wound on the left knee and a completely chopped right hand that remained attached only by skin, illustrating the brutality of the attack.
12. Counsel notes that the trial court considered all relevant circumstances, including the Applicant’s defence and the prosecution’s evidence, before arriving at the conviction for manslaughter and imposing sentence. She concludes that any application seeking review or reduction of the sentence ought to be presented before the Court of Appeal through the appellate process where the Applicant may comprehensively raise his grounds.
13. Consequently, Ms. Muema urges the court to find that it lacks jurisdiction to entertain the present application and to dismiss the same.
14. The parties relied on their respective affidavits.
15. 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. 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.
16. I will proceed to determine the two issues together as they are closely related.
17. 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.
18. 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 High Court sitting in its original criminal jurisdiction and therefore any challenge to the conviction or sentence ought to be pursued before the Court of Appeal through the appellate process.
19. 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.
20. 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.
21. In the present case, the record shows that the Applicant was charged with the offence of murder and upon conclusion of the trial he was convicted of the lesser offence of manslaughter and sentenced by the High Court. The Applicant has not demonstrated that he filed an appeal against the conviction or the sentence before the Court of Appeal, which is the proper forum for challenging the decision of the High Court.
22. 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.
23. 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.
24. 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.
25. Accordingly, I find that the present application is incompetent for want of jurisdiction and the same is hereby dismissed.
26. It is so ordered.
27. 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.
3. In his supporting affidavit, the Applicant deposes that he was convicted and sentenced to serve 10 years’ imprisonment for the offence of murder He states that he does not challenge either the conviction or the sentence imposed, but respectfully seeks consideration for a non-custodial sentence in the form of probation or a community service order.
4. The Application is opposed by the State. In her replying affidavit, Ms. Mercy Muema, learned Prosecution Counsel, deposes that the Applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in High Court Criminal Case No. 9 of 2020 before the High Court presided over by Aburili, J., in relation to the death of Gradus Otieno Akongo on 11th March 2020.
5. Counsel states that upon conclusion of a full trial, the High Court delivered its judgement on 27th March, 2024, convicting him of the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code pursuant to Section 179 of the Criminal Procedure Code.
6. Ms. Muema further deposes that following the conviction, the Applicant was sentenced by the High Court, but in the present application he has failed to disclose that he filed an appeal against either his conviction or the sentence imposed.
7. It is the learned Prosecution Counsel’s position that the High Court lacks jurisdiction to review or vary a sentence lawfully imposed by a court of concurrent jurisdiction, particularly where the same High Court exercised its original criminal jurisdiction in trying, convicting and sentencing the Applicant. She avers that the proper avenue for challenging the conviction or sentence is by way of an appeal to the Court of Appeal and not by an application before the same court that rendered the decision, as a court cannot sit on appeal over its own judgement.
8. Ms. Muema adds that allowing such an application would violate the established principle that a court of concurrent jurisdiction cannot review its own decision and would amount to an abuse of the court process.
9. The learned Prosecution Counsel further states that the Applicant has not disclosed whether he lodged an appeal before the Court of Appeal, which is the proper forum for challenging both conviction and sentence imposed by the High Court. Counsel contends that if the Applicant is aggrieved by the sentence imposed by the High Court, his recourse lies in filing an appeal within the time prescribed by law rather than seeking review before the same court.
10. The State, through Ms. Muema’s affidavit maintains that the judgement delivered on 27th March, 2024 and the subsequent sentence imposed by the High Court remain final and binding unless set aside or varied by a superior court on appeal. She further avers that allowing the Applicant to re-litigate the issue of sentence before the same court would offend the principles of finality in litigation and res judicata.
11. Ms. Muema emphasizes that the Applicant was convicted of the serious offence of manslaughter involving the unlawful killing of the deceased after the court found that the prosecution had proved all elements of unlawful killing except malice aforethought. She refers to the evidence on record in the trial file showing that the deceased sustained severe injuries, including multiple cut wounds, a deep cut wound on the left wrist severing major bones, a deep cut wound on the left elbow severing the elbow, a deep wound on the left knee and a completely chopped right hand that remained attached only by skin, illustrating the brutality of the attack.
12. Counsel notes that the trial court considered all relevant circumstances, including the Applicant’s defence and the prosecution’s evidence, before arriving at the conviction for manslaughter and imposing sentence. She concludes that any application seeking review or reduction of the sentence ought to be presented before the Court of Appeal through the appellate process where the Applicant may comprehensively raise his grounds.
13. Consequently, Ms. Muema urges the court to find that it lacks jurisdiction to entertain the present application and to dismiss the same.
14. The parties relied on their respective affidavits.
15. 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. 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.
16. I will proceed to determine the two issues together as they are closely related.
17. 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.
18. 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 High Court sitting in its original criminal jurisdiction and therefore any challenge to the conviction or sentence ought to be pursued before the Court of Appeal through the appellate process.
19. 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.
20. 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.
21. In the present case, the record shows that the Applicant was charged with the offence of murder and upon conclusion of the trial he was convicted of the lesser offence of manslaughter and sentenced by the High Court. The Applicant has not demonstrated that he filed an appeal against the conviction or the sentence before the Court of Appeal, which is the proper forum for challenging the decision of the High Court.
22. 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.
23. 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.
24. 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.
25. Accordingly, I find that the present application is incompetent for want of jurisdiction and the same is hereby dismissed.
26. It is so ordered.
27. 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.