https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7212

Kasivo v Republic (Criminal Revision E270 of 2023) [2026] KEHC 7212 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7212 (KLR) Republic of Kenya In the High Court at Makueni Criminal Revision E270 of 2023 JN Onyiego, J May 22, 2026 Between Daniel Kavoi Kasivo 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. 2.Having denied the charge, the case proceeded to full trial. Consequently, he was found guilty and sentenced to death. Having been dissatisfied, he appealed to Machakos High Court vide Criminal Appeal Number 134 of 2009 which was dismissed. He claimed that his sentence was later commuted to life imprisonment a sentence he now wants commuted to a definite jail term. 3.Subsequently, he has now moved to this court vide an undated notice of motion seeking review of life sentence on grounds that; he has served substantial sentence; he is a pauper; he be committed to non-custodial sentence; his relatives are ready to receive him back at home and that in line with Manyeso v Republic Criminal Appeal Number 12 of 2021, life imprisonment is unconstitutional. 4.In response, prosecution opposed the application on grounds that the sentence imposed was legal and that there is no law governing review of sentence in the circumstances. That the court is now functus officio. 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 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 v Republic. 8.In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence. There is no application nor appeal filed before the court of appeal challenging the legality or otherwise propriety of the sentence imposed. It is trite that sentencing is at the discretion of the court. 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. See Gacheru v Republic (Criminal Appeal 188 of 2000) (2021) KECA 94 (KLR) (20 February 2002) (Judgment). 9.In the circumstances of this case, the High Court has already pronounced itself. It has no jurisdiction to re-open a legal sentence. In other word, it is functus officio. The Supreme Court has on several cases now stated that, courts have no discretionary powers to interfere with minimum sentences imposed by the legislature robbery with violence included. See Republic v Mwangi; Initiative for strategic litigation in Africa and 3 others (Amicus curiae) (Petition E018 of 2023) (2024) KESC 34 (KLR) (12 July 2024) (Judgment). 10.In the circumstances of this case, I do not see any good reason persuasive enough to interfere with the legal sentence imposed. Accordingly, application is hereby dismissed. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 22ND DAY OF MAY, 2026............................................J. N. ONYIEGOJUDGE