Njogu v Republic (Miscellaneous Application E132 of 2025) [2026] KEHC 10525 (KLR) (15 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **MISC. APPLICATION NO. E132 OF 2025** **DAVID NJOROGE NJOGU .................................... APPLICANT** **VERSUS** **REPUBLIC ....................................................... RESPONDENT** **RULING** 1. By way of Notice of Motion dated 29th August 2026, the applicant, **DAVID NJOROGE NJOGU**, moved this court seeking an order that he be released on probation to serve the remainder of his sentence of 2 years and 4 months pursuant to Section 4 of the Probation of Offenders Act, Cap 64, Laws of Kenya. The application is supported by the applicant's own affidavit. 2. The Applicant was convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentenced to twenty years imprisonment in Nakuru High Court Criminal Case No. 88 of 2014. He has not lodged an appeal against the said conviction and sentence. 3. The Respondent, through the replying affidavit of **JAMES KIHARA**, Prosecution Counsel, has vehemently opposed the application on two primary grounds: first, that the Applicant has a pending appeal before the Court of Appeal; and second, and more fundamentally, that this Court lacks jurisdiction to entertain the application. 4. The applicant filed Consolidated replying written submissions in response to the Respondent's objections. 5. The applicant's case rests on several pillars. He contends that Paragraph 2.5.1 of the Revised Sentencing Policy Guidelines (2023) advocates for the Court's consideration of non-custodial sentences. He states that he is a first offender with no previous criminal record and no propensity for reoffending. He submits that Section 4 of the Probation of Offenders Act, Cap 64 Laws of Kenya, is applicable to his case and that he is ready and willing to comply fully with the terms of any probation order.He further deposed that he is suffering from a chronic medical condition, namely diabetes, which requires consistent medical management, and that he has served a substantial portion of his sentence and has demonstrated reform. 6. The Respondent raises three principal objections. First, the Respondent contends that the applicant has lodged an appeal and is therefore abusing the court process by filing a separate application while an appeal is pending. Second, the Respondent argues that the applicant is engaging in forum-shopping and that two matters cannot be filed in different courts in regard to one matter. Third, the Respondent submits that this Court has no powers to alter a sentence handed down by a court of concurrent jurisdiction, and that the only recourse is to appeal to the Court of Appeal. 7. The Applicant responds that he has never filed an appeal against his conviction or sentence and has expressly deposed that he does not intend to pursue one. He further submits that the earlier Criminal Misc. Application No. E088 of 2022 concerned Section 333(2) of the Criminal Procedure Code regarding credit for time spent in remand, which was conclusively determined, and that the present Application concerns Section 4 of the Probation of Offenders Act, which are distinct and separate matters. 8. The Applicant relies on Article 165(3)(a) and (b) of the Constitution, which grants the High Court unlimited original jurisdiction in criminal matters and authority to enforce fundamental rights post-conviction. He further invokes the Supreme Court decision in ***Francis Karioko Muruatetu v Republic [2017] eKLR,*** where the Supreme Court affirmed that sentencing is a continuing judicial process and courts retain discretion where justice demands. The Applicant maintains that he is not appealing the sentence but invoking statutory discretion, sentencing policy, and constitutional principles of dignity and rehabilitation. He also contends that Article 28 guarantees human dignity, which does not cease upon conviction, and that his chronic medical condition directly affects the proportionality and humanity of continued incarceration. 9. From the pleadings and submissions, the following issues arise for determination: whether this Court has jurisdiction to entertain the application; and what orders, if any, should this Court make. 10. The issue of jurisdiction is fundamental. As the Court of Appeal famously stated in the ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1***, jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds that it is without jurisdiction. 11. The Applicant has invoked Section 4 sub-section 2 of the Probation of Offenders Act, Cap 64, which provides that where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order. 12. The phrase "in lieu of sentencing him to any punishment" is pivotal. It demonstrates that the power to make a probation order must be exercised at the time of sentencing, not after the sentence has been passed and is being served. The provision is an alternative to sentencing, not an alternative to serving a sentence already imposed. 13. The Applicant has framed his application as seeking a non-custodial sentence pursuant to Paragraph 2.5.1 of the Revised Sentencing Policy Guidelines (2023). However, it must be remembered that sentencing guidelines are just that, guidelines. They are not a statutory provision conferring jurisdiction. The jurisdiction of this Court is conferred by the Constitution and statutes, not by policy documents. 14. I am alive to the applicant's reliance on ***Francis Karioko Muruatetu v Republic [2017] eKLR***, where the Supreme Court stated that sentencing is a continuing judicial process. However, that case concerned the mandatory nature of the death sentence under Section 204 of the Penal Code. The Supreme Court was addressing the constitutionality of a mandatory death sentence that deprived the trial court of discretion. It was not a pronouncement that a court can review its own final sentence years after it was imposed. 15. It is trite law that once a court has passed a final sentence, it has completed its task in respect of that matter. The High Court's revisionary powers under Sections 362 and 364 of the Criminal Procedure Code are expressly limited to proceedings in subordinate courts. This Court has no revisionary powers over its own decisions. 16. Furthermore, Article 165(6) of the Constitution provides that the High Court's supervisory jurisdiction does not extend over superior courts. A judge of the High Court cannot sit in appeal over or review a decision of a fellow judge of concurrent jurisdiction. 17. In ***Morris Mutwiri v Republic [2025] KEHC 13717 (KLR)***, Ndung'u, J. had occasion to consider a similar application under Section 4 of the Probation of Offenders Act and stated that the court cannot entertain a matter where the sentence was imposed by the Court of Appeal as to do so would be tantamount to sitting on appeal over the decision of a superior court and would violate Article 165(6) of the Constitution and the hierarchy of courts, and that the applicant's remedy lies in the Court of Appeal or by way of petition for the Power of Mercy to the President as provided for under Article 133 of the Constitution. 18. In ***Joseph Irungu Kibe v Republic [2021] KEHC 6922 (KLR)***, Mutende, J. similarly held that the application for review of sentence having been considered by Kimaru J. who presided over a court of concurrent jurisdiction with this court, his order finally determined the matter, therefore, this court is not seized of jurisdiction. 19. Applying the above reasoning, this Court is similarly not seized of jurisdiction to entertain this application. The sentence of twenty years imprisonment was lawfully imposed by a court of competent jurisdiction. This Court cannot, at this stage, sit on appeal over its own decision or that of a court of concurrent jurisdiction. To do so would be to undermine the constitutional hierarchy of courts and the principle of finality in litigation. 20. Consequently, the applicant's Notice of Motion dated 29th August 2026 is hereby dismissed in its entirety. **Dated, signed and delivered at Nakuru this 15th day of July, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Rutoh C/A Miss Anyumba for the State Applicant, present in person