REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL MISC APP. NO. E016 OF 2025
TITUS MUTHUI……………………………………………….APPLICANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
RULING
1. The accused has filed the application dated February 2025 seeking orders that court reviews the fine of Kshs. 1,000,000/= that was imposed by the lower court, taking into account the present economic strive as the applicant was a casual laborer. That the court considers imposing a none custodial sentence. The applicant invokes the provisions of Section 364 of the Criminal Procedure Code. He prays that he be ordered to serve probation sentence for the remaining part of the sentence.
2. The Prosecution/Respondent opposed the application and prays that the application be dismissed as the court is functus officio. The respondent submits that the applicant filed an appeal in this court and the court reduced the sentence and therefore it is barred from dealing with an application for review of the sentence by the doctrine of res judicata.
3. I have considered the chamber summons and the supporting affidavit. This matter was before the lower court, in the magistrate’s court at Migwani. The applicant was charged with the offence of Trafficking in Narcotic Drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 . The applicant readily pleaded guilty and was sentenced to serve twenty years imprisonment in default of paying a fine of One Million Kenya Shillings. (Kshs. 1,000,000/=) the applicant was dissatisfied with the sentence and he filed his appeal to the High Court, High Court Criminal Appeal No. 20/2020.
4. The appeal proceeded before my brother Justice R. K. Limo who in a Judgement dated 22/06/2021 the Judge noted that the sentence was legal though harsh. The Judge reduced the sentence of twenty (20) years to ten (10) years. Prior to that the applicant had filed an application for revision, that is Criminal Revision No. 186/2020 seeking Revision of the sentence but the application was declined.
5. It is therefore clear that the applicant has had is day in this court. The application for Revision is not properly before this court by dint of Section 364 Criminal Procedure Code which limits Revision by the High Court to orders emanating from the sub-ordinate court. Section 364 of the Criminal Procedure Code provides:
“ 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)in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
6. I find that the applicant has exhausted all the channels of appeal and Revision. The application is not properly before this court. I dismiss it.
Dated, signed and delivered at Kitui this 31st day of March 2026
HON. LADY JUSTICE L. GITARI
JUDGE
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL MISC APP. NO. E016 OF 2025
TITUS MUTHUI……………………………………………….APPLICANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
RULING
1. The accused has filed the application dated February 2025 seeking orders that court reviews the fine of Kshs. 1,000,000/= that was imposed by the lower court, taking into account the present economic strive as the applicant was a casual laborer. That the court considers imposing a none custodial sentence. The applicant invokes the provisions of Section 364 of the Criminal Procedure Code. He prays that he be ordered to serve probation sentence for the remaining part of the sentence.
2. The Prosecution/Respondent opposed the application and prays that the application be dismissed as the court is functus officio. The respondent submits that the applicant filed an appeal in this court and the court reduced the sentence and therefore it is barred from dealing with an application for review of the sentence by the doctrine of res judicata.
3. I have considered the chamber summons and the supporting affidavit. This matter was before the lower court, in the magistrate’s court at Migwani. The applicant was charged with the offence of Trafficking in Narcotic Drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 . The applicant readily pleaded guilty and was sentenced to serve twenty years imprisonment in default of paying a fine of One Million Kenya Shillings. (Kshs. 1,000,000/=) the applicant was dissatisfied with the sentence and he filed his appeal to the High Court, High Court Criminal Appeal No. 20/2020.
4. The appeal proceeded before my brother Justice R. K. Limo who in a Judgement dated 22/06/2021 the Judge noted that the sentence was legal though harsh. The Judge reduced the sentence of twenty (20) years to ten (10) years. Prior to that the applicant had filed an application for revision, that is Criminal Revision No. 186/2020 seeking Revision of the sentence but the application was declined.
5. It is therefore clear that the applicant has had is day in this court. The application for Revision is not properly before this court by dint of Section 364 Criminal Procedure Code which limits Revision by the High Court to orders emanating from the sub-ordinate court. Section 364 of the Criminal Procedure Code provides:
“ 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)in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
6. I find that the applicant has exhausted all the channels of appeal and Revision. The application is not properly before this court. I dismiss it.
Dated, signed and delivered at Kitui this 31st day of March 2026
HON. LADY JUSTICE L. GITARI
JUDGE