https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7201

Mutwiwa v Republic (Criminal Revision E063 of 2025) [2026] KEHC 7201 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7201 (KLR) Republic of Kenya In the High Court at Makueni Criminal Revision E063 of 2025 JN Onyiego, J May 22, 2026 Between Benjamin Mutinda Mutwiwa Applicant and Republic Respondent Ruling 1.The applicant herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code to which he was sentenced to suffer death. Aggrieved by the conviction and sentence, he appealed to Machakos High Court vide Criminal Appeal Number 141 of 2010 in which the appeal was dismissed. 2.Undeterred, he has now moved to this court via an undated Notice of Motion brought pursuant to several constitutional provisions and Section 333(2) of the Criminal Procedure Act. He averred that the death sentence is illegal and unconstitutional; he seeks lenience for he has since reformed and that further mitigation is expedient. 3.In response, prosecution opposed the application on grounds that the court is functus officio and the sentence is legal. 4.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. 5.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 Penal 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.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 v Republic. 7.In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence. An Appellate Court can only interfere if the same is illegal, excessive or imposed after taking into account wrong legal principles or taking into account irrelevant factors. In any event, the only recourse is to file an appeal to the court of appeal. 8.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 2026J. N. ONYIEGOJUDGE