https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10794

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CRIMINAL MISCELLANEOUS APPLICATION NO. E484 OF 2024** **ERUSTUS BIWOTT KIPKEU .................................APPLICANT** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS.....................RESPONDENT** **RULING** 1. The applicant moved this court by way of a Notice of Motion (undated) seeking a sentence review in accordance with Article 165(3) of the Constitution and relying also on section 4 and 5 of the Probation of offenders Act Cap 64 Laws of Kenya. He seeks to be placed on probation for the remaining part of his sentence. 2. The application is supported by his affidavit. He depones that he was sentenced to 9 years imprisonment at the Eldoret High Court for the offence of Manslaughter. That he is remorseful, repentant, reformed and rehabilitated as he has learnt hard lessons in custody. That he has undergone peer counselling and social programmes offered at the correction facility for purposes of rehabilitation and transformation. 3. He adds that his family and that of the victim reconciled and the community is no longer hostile to him. 4. The facts as borne from the record in HCCRC NO. 56 of 2019 are that upon reduction of charges against the Applicant from Murder to Manslaughter, he pleaded guilty and was sentenced by Githinji J to serve 9 years imprisonment. 5. The issue for determination is whether the court has jurisdiction to entertain the current Motion. 6. The jurisdiction of the High court is provided for under **Article 165(3)** of the **Constitution** and includes ***unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction;*and *any other jurisdiction, original or appellate, conferred on it by legislation****.* The High court further *has supervisory jurisdiction* over subordinate courts donated by **Article 165(6)** of the **Constitution** which states that; ***(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.*** 1. This Court has review jurisdiction in its supervisory role over surbodinate courts and other *quasi* judicial bodies. In its criminal jurisdiction, the review power is, in addition to the constitutional supervisory powers, housed in **sections 362** and **364** of the **Criminal Procedure Code** and extends only to – ***“…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.”*** 1. The details of those powers of the High Court in revision are set out in **section 364.** 2. As per **Article 165(6)** and the above section, the High Court can only review or exercise revisionary powers over a subordinate court. 3. There is no law which bestows this court with jurisdiction to review a decision by a court of concurrent jurisdiction and/or its own decision. No judge of the High Court can superintend over fellow judges of that court or of the superior courts. The Court of Appeal in ***Peter Ng’ang’a Muiruri Vs. Credit Bank Ltd & 2 Others*** ***Civil Appeal No. 203 of 2006***held that; ***“It would be a usurpation of power to push forward such an approach, and whatever decision emanates from a court regarding itself as a constitutional court, with powers of review over decisions of concurrent or superior jurisdiction, such decision is at best a nullity.”*** 1. This court (Githinji J) having dealt with the Applicant’s case and sentenced him to 9 years is bereft of jurisdiction to revisit the matter. Any infractions by the court if at all can only be redressed by the court of appeal. I cannot review the sentence even though passed by a different judge. I have not come across any statutory provision that gives this court any criminal revisionary jurisdiction over its own findings, sentences or orders made or passed in exercise of its original or appellate criminal jurisdiction or jurisdiction over the findings of a superior court. 2. The court in ***David Mutai v Republic [2021] eKLR*** held that; ***“Though the High Court has unlimited original jurisdiction in Criminal and Civil matters under Article 165(3)(a) of the Constitution, holding it that it encompasses revisiting issues dealt with by the same Court and a step higher by the Court of Appeal, is equivalent to according the High Court cosmic jurisdiction of which it doesn’t have. Litigation just like everything else bad or good, has an end. The end point in this one was at the Court of Appeal, but probably there’s a slight vent to the supreme Court. Having observed the foregoing, I do find that this Court lacks jurisdiction to re-sentence the petitioner as urged. The petition therefore lacks merit and is hereby dismissed.”*** 1. The court in ***Stephen Mugendi Ndwiga v Republic [2021] eKLR*** observed that; ***“It is my considered view that this court cannot review a judgment of Hon. S. Chitembwe J and in doing so resentence the petitioner herein…Further this court is bereft of jurisdiction to review the said judgment as doing so would be tantamount to sitting as an Appellate court on the judgment of the Learned Judge and which act the law abhors. In the same breath, this court cannot review the said judgment and in doing so take into account the time the petitioner had spent in custody. The same ought to have been dealt by Hon. Chitembwe J as the first appellate court. Failure by the said first appellate court to consider the said period cannot be rectified by this court as the same shall be akin to reviewing the decision of a court of concurrent jurisdiction.”*** 1. Further illumination on the issue is found in the decision in **John Kagunda Kariuki v Republic [2019] eKLR,** where Ngugi J (as he then was) expressed himself as follows; ***“In the present case, 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.*** ***At the helm of the Court system in Kenya is the Supreme Court followed by the Court of Appeal. This Court falls below the Court of Appeal. After the Applicant’s appeal in this Court was dismissed, he appealed to the Court of Appeal and the same was dismissed. That decision of the Court of Appeal is binding on this Court. In light of this, to entertain this matter in respect of which the Court of Appeal has pronounced itself, no matter how compelling the arguments placed before it, would be to violate the constitutional judicial hierarchical norm. In this regard, I am guided by the holding in the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, where the Court of Appeal stated: As we stated at the beginning of this judgment this appeal is disturbing. The multiplicity of endless proceedings around the same dispute does not bode well for the administration of justice…Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts.Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing.It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere”.*** 1. There has been a serious misapprehension of the law following the decision of the Supreme Court in **Muruatetu 1** which indeed prompted the Supreme Court to provide clarity in **Muruatetu 2** and, lately, in **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024)** where the court has affirmed the legality of the mandatory sentences in the Sexual offences. The court stated; ***“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law……………*** ***Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence”.*** 1. From the foregoing, this court can only review the judgment of a subordinate court under the jurisdiction provided by **Sections 362** and **364** of the **Criminal Procedure Code** and the supervisory powers over subordinate court’s donated by **Article 165(6)** of the constitution. I must add for good measure that such review would not extend to review of legal sentences arrived at through proper application of existing law and procedure. 2. With the result that the application herein fails for want of jurisdiction and is dismissed. **Dated signed and delivered virtually this 9th day of October 2025** **A.K. NDUNG’U** **JUDGE**