https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10139

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **MISC. CRIMINAL APPLICATION NO. E041 OF 2025** **BENJAMIN MUTUNGA MULUVI SUTI…………………………………...APPLICANT** **VS** **REPUBLIC……………………………………………………………..….RESPONDENT** **RULING** 1. The Applicant herein was charged with the offence of **Rape Contrary to Section 3 of the Sexual Offences Act No.3 of 2006.** 2. Having denied the charge, the case was fixed for full trial. Consequently, he was convicted and sentenced to 25 years imprisonment. Aggrieved by both the conviction and sentence, he appealed to the High Court. His appeal was dismissed. Undeterred, he moved to the Court of Appeal which equally dismissed his appeal. 3. Subsequently, he has now moved to this court vide an undated **Notice of** **Motion** seeking review of sentence urging the court to place him on Community Service Order pursuant to the C.J’s circular of 7.12.2022 encouraging courts to decongest prisons. He stated that he has been in custody for 14 years now hence entitled to a non-custodial sentence. 4. In response, prosecution urged that the court is *functus officio* having pronounced itself on appeal. 5. I have considered the application herein 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 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 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.** 1. **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.** 1. 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.** 2. In the instant case, the Applicant is seeking sympathy on account that he has been in custody long enough to warrant his release on CSO. The offence the Applicant was charged with is very serious hence not covered under those recommended for CSO sentence pursuant to the **CSO Act**. I do agree with the prosecution that the court is *functus officio* as it has already pronounced itself hence cannot assume appellate jurisdiction on its own judgment. Accordingly, application is dismissed. Dated, signed and delivered in open court this **10th** day of **July 2026** **………………………………..** **J. N. ONYIEGO** **JUDGE**