Kilika v Republic (Criminal Revision E004 of 2026) [2026] KEHC 7265 (KLR) (22 May 2026) (Ruling)

Kilika v Republic (Criminal Revision E004 of 2026) [2026] KEHC 7265 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7265 (KLR) Republic of Kenya In the High Court at Makueni Criminal Revision E004 of 2026 JN Onyiego, J May 22, 2026 Between Arthur Muli Kilika Applicant and Republic Respondent Ruling 1.The applicant herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars were that on 21-4-2023, at Ngunga village, Ndolo Sub-location, Ndolo Location in Kilungu Sub-county he murdered Zila pendo. 2.He denied the charge but later entered into a plea bargaining agreement and pleaded guilty to a lesser charge of manslaughter. He was consequently sentenced to serve 10 years imprisonment. 3.Undeterred, he has now moved to this court via an undated Notice of Motion seeking a more lenient sentence preferably 2 years in jail or be committed to CSO sentence. He claimed that he has since reformed and needs a chance to reintegrate with society. 4.In response, prosecution opposed the application on grounds that the court is functus officio and the sentence is legal. 5.I have considered the application and the oral submissions by both parties. The main issue for determination is whether this Honourable Court has jurisdiction to determine the application herein and issue the orders sought. 6.The law governing revision in a criminal case is captured under Section 362 and 364 of the Criminal Procedure Code which provides as follows;“362.Power of High Court to call for recordsThe 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 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 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. 7.It is clear from the above provisions that an application for review of sentence can be entertained only for purposes of the court satisfying itself as to the correctness, legality or propriety of the proceedings. Section 364(5) of the Criminal Procedure Code is emphatic that no application for revision should be entertained where an appeal lies from a sentence or order. This position was espoused in Criminal Revision number 194 of 2023 Kisii High Court in the case of Barongo Sianyo Atembe vs Republic. 8.In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence imposed my sister Judge Matheka after reducing the charge to that of manslaughter. He should be grateful that he is already enjoying a lenient sentence. 9.In the instant case, I do not have jurisdiction to interfere with the sentence imposed by a court of concurrent jurisdiction. This court is functus officio. Accordingly, the application is dismissed. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 22ND DAY OF MAY 2026………………………J. N. ONYIEGOJUDGE