The Applicant was sentenced to life imprisonment for the offence of defilement which however was reduced to indecent assault upon appeal and the sentence to thirty (30) years imprisonment.
The reduction was by Kemei J then sitting at this very court (Machakos High Court). That court is of concurrent jurisdiction as the court presently hearing this application.
The jurisdiction of a court flows either from a statute or from the Constitution. As for statutory law there is none that makes provision for a court to sit on appeal over a decision of a court of concurrent jurisdiction. The only power the High Court has is to hear appeals and revisions from decisions of the courts and tribunals below it - see Article 165(3)(e) and (6) of the Constitution. Further, Section 364(5) of the Criminal Procedure Code, forbids the High Court from entertaining applications for revision where an accused person could have appealed but does not do so. That Section would not, in any event, be applicable to this case as the Applicant is not requesting for a review of a sentence of the court below but of a sentence imposed by a judge of this court.
As for the power of review, Article 50(2)(q) of the Constitution makes it very clear that review can only be sought from a higher court. That sub-article states:-
“50 (2) Every accused person has the right to a fair trial, which includes the right –
………..
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law”
Clearly, this court has no jurisdiction even under the above sub-article to entertain an appeal or an application for review of the decision of another judge.
In the premises, the application is not merited. It is misconceived and it is accordingly dismissed. Perhaps the Applicant would be better advised to try his luck with the Presidential Power of Mercy Committee which has the mandate to advise the President in the circumstances of such applications. The Sentencing Policy Guidelines do not apply. The same apply only at the time of sentencing.
It is so ordered.
Ruling signed, dated and delivered in open court on this 27th Day of July, 2026.
In the presence of:
Mr. Masila Advocate for the State
The Applicant in person
Miriam - Court Assistant/Interpreter
The reduction was by Kemei J then sitting at this very court (Machakos High Court). That court is of concurrent jurisdiction as the court presently hearing this application.
The jurisdiction of a court flows either from a statute or from the Constitution. As for statutory law there is none that makes provision for a court to sit on appeal over a decision of a court of concurrent jurisdiction. The only power the High Court has is to hear appeals and revisions from decisions of the courts and tribunals below it - see Article 165(3)(e) and (6) of the Constitution. Further, Section 364(5) of the Criminal Procedure Code, forbids the High Court from entertaining applications for revision where an accused person could have appealed but does not do so. That Section would not, in any event, be applicable to this case as the Applicant is not requesting for a review of a sentence of the court below but of a sentence imposed by a judge of this court.
As for the power of review, Article 50(2)(q) of the Constitution makes it very clear that review can only be sought from a higher court. That sub-article states:-
“50 (2) Every accused person has the right to a fair trial, which includes the right –
………..
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law”
Clearly, this court has no jurisdiction even under the above sub-article to entertain an appeal or an application for review of the decision of another judge.
In the premises, the application is not merited. It is misconceived and it is accordingly dismissed. Perhaps the Applicant would be better advised to try his luck with the Presidential Power of Mercy Committee which has the mandate to advise the President in the circumstances of such applications. The Sentencing Policy Guidelines do not apply. The same apply only at the time of sentencing.
It is so ordered.
Ruling signed, dated and delivered in open court on this 27th Day of July, 2026.
In the presence of:
Mr. Masila Advocate for the State
The Applicant in person
Miriam - Court Assistant/Interpreter