https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7334

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL REVISION NO. E033 OF 2025** **ABDULKADIR MIKA NATEMBEA ……………………. APPLICANT** * **VERSUS -** **REPUBLIC ………………………………………..……… RESPONDENT** **RULING** 1. The Application before the Court is an undated Notice of Motion filed by the Applicant and supported by his sworn affidavit, in which he seeks revision of his sentence. 2. The Applicant was convicted of the offence of murder contrary to Section 203, as read with Section 240, of the Penal Code. This Court (differently constituted) sentenced him to death, and this was later commuted to thirty (30) years’ imprisonment. 3. The Applicant has now approached this Court seeking revision of his sentence on the ground that Section 333(2) of the Criminal Procedure Code was not complied with. He averred in the grounds of the Application that he had been in remand for two years, that he was deeply remorseful and regretted committing the offence, that he was a first offender, had aged parents, and was the sole breadwinner of his young family. 4. He invoked the court’s jurisdiction under Articles 165(3)(a) and 2(a) of the Constitution and relied on the case of Joseph Munio v Republic, Appeal No. 14 of 2010. 5. When the parties appeared in court on 18th February 2026, the Applicant stated that the two years he spent in remand were not taken into account by the Court when determining the final sentence. Miss Matere, Prosecution Counsel, objected to the Application and submitted that the Court had considered the period spent in custody in the Ruling dated 14th August 2024. 6. Having set out the above, the main issue for my determination is ***whether the Application is merited and the prayers sought ought to be allowed.*** **ANALYSIS AND DETERMINATION** 1. **Article 50 of the Constitution** provides for the rights of an accused person as follows: - **(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.** 1. The revisionary powers of this Court are premised under **Article 165 of the Constitution** and **Sections 362-364 of the Criminal Procedure Code**. Article 165 states: **(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.** 1. Sections 362 and 364 of the Criminal Procedure Code, which grant the Court the supervisory role of calling for and examining the records of any criminal proceedings before subordinate courts for the purpose of satisfying itself as to thecorrectness, 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, provide asfollows: **362. Power of High Court to call for records** **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.** **364. Powers of the High Court on Revision** 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 order, 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.** **(2) No order under this section shall be made to the prejudice of an accused person unless he had had an opportunity of being heard either personally or by an advocate in his own defense:** **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.** 1. From the above, it is evident that this Court cannot exercise revisionary powers over itself or any other court of concurrent jurisdiction. At the same time, since the Applicant has already exercised his rights under Article 50 and has had his sentence commuted from a death sentence to a thirty-year imprisonment sentence, I find that this Court became functus officio in the present case the moment it rendered its Ruling on 14th August 2024. 2. I have considered the provisions of **Section 333 (2) of the Criminal Procedure Code** stipulate thus: - **(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.** **Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.** 1. In **Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR**, the Court of Appeal held thus: - ***“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”*** 1. It is the view of this Court that, even if the period spent by the Appellant in pre-trial custody was not taken into account when the sentence was commuted, this Court cannot revisit the same issue in the name of revision, as it lacks jurisdiction to entertain the present Application. I therefore dismiss the present Application for want of merit and direct that the Applicant shall continue to serve the remainder of his sentence in custody. **Dated, signed and delivered virtually this 28th Day of May 2026.** **R.E. OUGO** **JUDGE** **In the presence of:** **Abdulkadir Mika Natembea/ Applicant** **For the Respondent** **Wilkister - C/A**