(Being an application for commutation of sentence to probation arising from original conviction and sentence in Kwale Magistrates Court Cr. Case No. 746 of 2012 Hon. B. Koech. SRM and Judgment in Mombasa HC Cr. Appeal No. 114 of 2019 delivered on 4/2/2020 Hon. Lady Justice A. Ong’ijo)
R U L I N G ON REVIEW OF SENTENCE
1. This is an application for review of sentence by the applicant Muhaji Jabu Salim. The applicant seeks commutation of his sentence of imprisonment so as to be placed on probation for the remainder of the prison term. The application is brought under section 4(2) of the Probation of Offenders Act (Cap. 64) Laws of Kenya.
2. The applicant was convicted of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). He was sentenced to 20 years imprisonment by the trial court. He appealed in Mombasa High Court Criminal Appeal No. 114 of 2019 and his conviction was upheld but the sentence reduced to 15 years imprisonment which is the minimum sentence for the offence under the SOA which he is currently serving at Shimo La Tewa prison. He now applies for commutation of the remainder of the sentence to probation.
3. Section 362 of the Criminal Procedure Code provides for the supervisory power of the High Court over proceedings before the magistrates’ courts as follows:
“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.
4. Section 364 CPC cited by the applicant in this matter, provides for the powers of the High Court on revision thus:
(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) …
5. I have considered the proceedings on sentencing by the trial court as well as the offence charged and I do not find any incorrectness, illegality or impropriety in the sentence passed against the applicant and neither do I find any irregularity in the proceedings.
6. More importantly, this court already considered the matter on appeal and made orders thereon which included a reduction in the sentence. It cannot be that the court can go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point. That is presumed to have been considered at the time of the appeal.
7. The offence for which the applicant was convicted carries a minimum term of 15 years imprisonment which this court has already imposed, thereby reducing the initial sentence imposed by the trial court. This court cannot sit to revise its own orders. There is no ground upon which this court can commute the sentence to probation particularly, the sentence being the minimum provided for in law.
8. In the circumstances I find no merit in the application and the same is dismissed. The applicant to serve his sentence in full as passed by the High Court on appeal.
9. Orders accordingly.
Ruling delivered, dated and signed in Open Court on the Virtual Platform, Teams this 6th day of March 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Shimo La Tewa prison.
M/s Vallerie for the Respondent
Johnson - Court Assistant
R U L I N G ON REVIEW OF SENTENCE
1. This is an application for review of sentence by the applicant Muhaji Jabu Salim. The applicant seeks commutation of his sentence of imprisonment so as to be placed on probation for the remainder of the prison term. The application is brought under section 4(2) of the Probation of Offenders Act (Cap. 64) Laws of Kenya.
2. The applicant was convicted of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). He was sentenced to 20 years imprisonment by the trial court. He appealed in Mombasa High Court Criminal Appeal No. 114 of 2019 and his conviction was upheld but the sentence reduced to 15 years imprisonment which is the minimum sentence for the offence under the SOA which he is currently serving at Shimo La Tewa prison. He now applies for commutation of the remainder of the sentence to probation.
3. Section 362 of the Criminal Procedure Code provides for the supervisory power of the High Court over proceedings before the magistrates’ courts as follows:
“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.
4. Section 364 CPC cited by the applicant in this matter, provides for the powers of the High Court on revision thus:
(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) …
5. I have considered the proceedings on sentencing by the trial court as well as the offence charged and I do not find any incorrectness, illegality or impropriety in the sentence passed against the applicant and neither do I find any irregularity in the proceedings.
6. More importantly, this court already considered the matter on appeal and made orders thereon which included a reduction in the sentence. It cannot be that the court can go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point. That is presumed to have been considered at the time of the appeal.
7. The offence for which the applicant was convicted carries a minimum term of 15 years imprisonment which this court has already imposed, thereby reducing the initial sentence imposed by the trial court. This court cannot sit to revise its own orders. There is no ground upon which this court can commute the sentence to probation particularly, the sentence being the minimum provided for in law.
8. In the circumstances I find no merit in the application and the same is dismissed. The applicant to serve his sentence in full as passed by the High Court on appeal.
9. Orders accordingly.
Ruling delivered, dated and signed in Open Court on the Virtual Platform, Teams this 6th day of March 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Shimo La Tewa prison.
M/s Vallerie for the Respondent
Johnson - Court Assistant