https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9156

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HIGH COURT CRIMINAL REVISION NO. E009 OF 2025** **ERIC KIIO KITHUKA……………………………………………………… APPLICANT** **VS** **REPUBLIC……………………………………………………………...… RESPONDENT** **RULING** 1. The Applicant herein was together with two others charged with two counts of **Murder Contrary to Section 203 as read with Section 204** of the **Penal Code** in Makueni High Court Criminal Case Number 12 of 2019. He was found guilty and sentenced to 10 years imprisonment for each account after full trial. Sentences were to run concurrently. 2. Subsequently, he has now moved to this Court vide Notice of Motion dated 20-2-2026 seeking review of sentence downwards or non-custodial sentence on grounds that; he has reformed; if released he will maintain good record; his health is deteriorating; seeks mercy and non-custodial sentence; he is remorseful; court to consider that he is a first offender and that the court did not consider the period spent in remand custody which translates to 2 years, 3 months and 4 days. 3. In response, prosecution urged the court not to interfere with the lawful sentence imposed and that the court is *functus officio*. Prosecution Counsel opined that this Court cannot seat as an Appellate Court on its own judgment. 4. 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. 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 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 court is being asked to exercise mercy and therefore reduce the sentence. There is no application nor appeal filed 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).** 3. The applicant was sentenced after being convicted by this court. After sentence, the court became *functus officio*. The only recourse the applicant has, is to appeal to the Court of Appeal. This court has no legal authority to review its own sentence. 4. The prayer that he be treated with leniency was the subject of mitigation before the trial court which fact was considered. 5. In the circumstances, I do not find any good reason persuasive enough to interfere with the legal sentence imposed. To that extent, the application is not merited hence dismissed. Dated, signed and delivered virtually this 2**6th** day of **June, 2026** …….................……… J.N.ONYIEGO **JUDGE**