https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8154

Meshack v Republic (Criminal Revision E653 of 2024) [2026] KEHC 8154 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8154 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Revision E653 of 2024 TW Ouya, J June 11, 2026 Between Dancun Irungu Meshack Applicant and Republic Respondent Ruling 1.The Applicant, Dancun Irungu Meshack, approached this court vide an undated Notice of Motion, seeking a review of the sentence imposed on him by the Principal Magistrate’s court in Kangema Criminal Case No. 488 of 2014 and confirmed by this court on appeal in Criminal Appeal No. 36 of 2014. 2.A brief background to the present application, as can be ascertained from the records of this court, is that the Applicant was tried and convicted at the lower court, of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the charge alleged that on diverse dates between 21st December, 2013, within Murang’a county, the appellant intentionally caused an act of penetration to SWM, a girl aged 11 years. 3.Upon conviction, the Applicant was sentenced to life imprisonment. Aggrieved by his conviction and sentence, the appellant proffered an appeal to this court. The appeal was subsequently dismissed, and this court upheld both his conviction and sentence. 4.The Applicant has now come to this court seeking a review of the sentence that was imposed on him by the trial court and upheld by the High Court on appeal. The application is premised on the grounds set out on its face and is supported by the affidavit sworn by the Applicant on 16th December, 2024. 5.Briefly, the Applicant averred that following his conviction and sentence to life imprisonment by the trial court, he appealed to this court. Upon dismissal of that appeal, he proceeded to file a second appeal before the Court of Appeal in Criminal Appeal No. 61 of 2018, which appeal was likewise dismissed. He stated that he now seeks to tender further mitigation in support of the present application for sentence review, in the interest of justice. 6.The Applicant contended that he is a first offender and is remorseful for the offence committed. He further stated that, owing to his advanced age of 78 years, he suffers from high blood pressure and several other illnesses. He also averred that he has since been fully rehabilitated and reformed, and that his conduct and prison records are commendable. On those grounds, the Applicant urged this court to review his sentence and find that the period already served in custody is sufficient punishment. 7.The application was canvassed orally before this court on 3rd December, 2025. At the hearing, the prosecution opposed the application and submitted that the grounds advanced by the Applicant in support of the request for sentence review did not constitute sufficient basis for this court to interfere with the minimum sentence prescribed for the offence. 8.The prosecution further submitted that, in dismissing the Applicant’s appeal, this court had already observed that the sentence imposed by the trial court was the minimum sentence prescribed by law for the offence. The Applicant though present during the hearing of his application, did not make any oral submissions. 9.I have duly considered the application together with the oral submissions made by the prosecution in opposition thereto. Having done so, I find that the main issue for determination is whether this court has jurisdiction to entertain the present application. 10.As stated herein above, after his conviction and sentence by the trial court, the Applicant appealed to this court against his conviction and sentence, and his appeal was dismissed by Hon. Lady Justice Mshila, on 13th October, 2016. From the appellant’s own admission, he stated that after this court dismissed his appeal, he filed a second appeal to the Court of Appeal, being CoA Criminal Appeal No. 61 of 2018, which appeal was also dismissed by the said court. 11.It is therefore evident that, having failed in his appeals before this court and the Court of Appeal, the Applicant has now returned to this court seeking a review of a sentence that was upheld both by a court of concurrent jurisdiction and by the Court of Appeal. 12.Section 362 of the Criminal Procedure Code makes it clear that the revisional jurisdiction of this court, which is what the Applicant in this case has invoked, is exercisable only in respect of decisions, orders, or sentences passed by subordinate courts, and not by superior courts, which include the High Court and the Court of Appeal. 13.The provision states as follows: “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.” 14.It is therefore clear that this court lacks revisional jurisdiction over its own decisions or those of other superior courts. Based on the foregoing, it is evident that this court lacks the jurisdiction to entertain the present application. 15.Furthermore, Article 50 (2) (q) of the Constitution, provides that an accused person has the right to a fair trial, “which includes the right, if convicted, to appeal or apply for review by a higher court as prescribed by law.” 16.It is clear from the above provision of the constitution that where an accused is not satisfied by the decision of a lower court, the said accused has an option of either appealing a conviction or sentence or applying for a review of the decision, but an accused person cannot appeal a decision and thereafter make an application for review of the same matter as is the case in the present application. 17.I find guidance in the case of John Kagunda Kariuki versus Republic (2019) KEHC 5480 (KLR); where Ngugi, J, (as he then was) stated as follows: “the Applicant’s appeal has already been heard by the High Court. He cannot return to the High Court for a review of the sentence imposed. He is at liberty to make an argument for reduced sentence at the Court of Appeal.” 18.Additionally, in Mohammed Abdille Hamud versus Republic (2022) eKLR; the court when faced with a similar application, stated as follows: “It is not in dispute that having been aggrieved by the judgement of the trial court the Applicant appealed to this court and the appeal heard and determined. In John Kamau Gachuha v Republic [2019] eKLR the Court held as follows; “…. The Applicant merely seeks the imposition of a more lenient sentence. This court has no revision jurisdiction over an appeal it has concluded. The Applicant’s only option is to appeal in the Court of Appeal….” …The only remedy thus available to the Applicant now lies with the Court of Appeal should the Applicant feel aggrieved by this Court’s determination on appeal. This court does not have jurisdiction to determine the issues raised in the application for a second time.” 19.This court became functus officio the moment it rendered its decision on the Applicant’s appeal. The Applicant admitted that upon dismissal of his appeal by this court, he proceeded to file a second appeal before the Court of Appeal, which was likewise dismissed. Consequently, this court lacks jurisdiction to entertain the present application, as it cannot exercise revisional jurisdiction over its own decisions, let alone over decisions of the Court of Appeal. 20.In the circumstances, this application is incompetent before this court for want of jurisdiction and is hereby dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Ndege for RespondentDancun Irungu Meshack present virtually from Nyeri Maximum prison