https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8407

FKM v Republic (Miscellaneous Criminal Application E019 of 2026) [2026] KEHC 8407 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8407 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Criminal Application E019 of 2026 JN Onyiego, J June 12, 2026 Between FKM Applicant and Republic Respondent (Being Revision Application against the Sentence of Hon. E. Muiru (SRM) in S.A.O. No. 72 of 2018 delivered on 13-3-2010 at Kilungu Law Courts) Ruling 1.The applicant herein was charged with the offence of Incest Contrary to Section 20 (1) of the Sexual Offences Act No.3 of 2006 in that he caused his penis to penetrate the vagina of his daughter a child aged 11 years. He faced an alternative count of Committing an Indecent Act with a Child Contrary to Section 11(1) the Sexual Offences Act No.3 of 2006. 2.Having denied the charge, the case was fixed for full trial. Consequently, he was convicted and sentenced to life imprisonment. Aggrieved with the conviction and sentence, he filed Criminal Appeal Number 23 of 2019 which confirmed the conviction but reduced sentence to 25 years. 3.Subsequently, he has now moved to this court vide a Notice of Motion dated 1-4-2026 seeking review of sentence downwards on grounds that he has reformed and undergone rehabilitation and finally, that court considers the period spent in remand custody. 4.In response, prosecution urged that the court is functus officio having pronounced itself on appeal. 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 vs Republic. 8.In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence after considering Section 333(2) of the Criminal Procedure Act. 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.However, the applicant has raised the issue of reduction of the sentence after considering Section 333(2) of the Criminal Procedure Code. 10.The proviso to Section 333(2) of the Criminal Procedure Code requires the court to take account of time spent in custody in sentencing. The said Section provides that: -“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody (emphasis mine).” 11.Court’s role under Section 333(2) of the Criminal Procedure Code has been explained in the Judiciary Sentencing Policy Guidelines (under Clauses 7.10 and 7.11) thus:“The provision to Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 12.Various superior courts have also emphasized that courts must give full effect to Section 333(2) of the Criminal Procedure Code. See the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR. (See also Bethwel Wilson Kibor vs. Republic [2009] eKLR). 13.In the instant case, the applicant was sentenced to life imprisonment hence the court had no room left to apply Section 333(2) of the Criminal Procedure Code. In any event, he has benefitted with the reduction of sentence from life sentence to 25 years imprisonment. Therefore, the court is functus officio. Application is thus dismissed. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 12TH DAY OF JUNE 2026………………………………..J. N. ONYIEGOJUDGE