https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11558

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO.E024 OF 2025 SPTE JOHN GITAU ......................................... APPELLANT /APPLICANT VERSUS REPUBLIC…………………………………….……………….. RESPONDENT INTRODUCTION RULING 1. Before this Court is the Applicant's Notice of Motion dated 24th April 2025, brought pursuant to Sections 362 and 364 of the Criminal Procedure Code, Articles 50(2)(p), 159(2), and 165(6) of the Constitution of Kenya, together with all other enabling provisions of the law. 2. By the said Motion, the Applicant seeks the following orders:- a) This Honourable Court be pleased to call for and examine the record of the trial proceedings in Court Martial sitting at Kahawa Garrison vide Case No. 19 of 2022 and the appeal decision in Kiambu High Court Criminal Appeal No. E024 of 2024 for purposes of satisfying itself as to the correctness, legality, or propriety of the sentence imposed upon the Applicant, in line with the principles of fairness and Proportionality. HCCA. NO.E024 OF 2025 RULING - Page 1 of 15 b) The sentence of 30 years' imprisonment imposed upon the Applicant be reviewed, reconsidered, and substituted with a more appropriate sentence, taking into account the mitigating circumstances, including the Applicant's personal circumstances and the principles laid out in Francis Karioko Muruatetu & Another v Republic [2017] eKLR. c) The Honourable Court considers the principles of justice and rehabilitation in sentencing, as enshrined in Article 50(2)(p) and 159(2) of the constitution of Kenya and grants the Applicant a sentence that is proportionate and just. d) Such further and/or alternative orders be made as this Honourable Court may deem just and expedient in the circumstances. 3. The Application is opposed by the Respondent through a Notice of Preliminary Objection dated 30th April 2026. The Respondent contends that this Court lacks jurisdiction to entertain the Application on the ground that the Applicant had previously appealed against both conviction and sentence, which appeal was conclusively determined by the High Court in its judgment delivered on 21 st November 2024. It is further contended that the present proceedings constitute an impermissible invitation to this Court to review, vary, or sit on appeal against the final determination of a court of concurrent jurisdiction. HCCA. NO.E024 OF 2025 RULING - Page 2 of 15 BACKGROUND 4. The Applicant, a member of the Kenya Defence Forces, was arraigned before the Court Martial sitting at Kahawa Garrison and charged with the offence of Committing a Civil Offence contrary to Section 133(1)(b) of the Kenya Defence Forces Act, 2012, namely, Murder contrary to Section 203 as read with Section 204 of the Penal Code. 5. Upon conclusion of the trial, the Court Martial found the Applicant guilty of the offence of murder, convicted him accordingly, and sentenced him to serve thirty (30) years imprisonment. 6. Aggrieved by both the conviction and sentence, the Applicant preferred an appeal to the High Court in Kiambu High Court Criminal Appeal No. E024 of 2024, challenging the findings of the Court Martial. 7. Among the grounds advanced in the appeal was that the sentence of thirty (30) years imprisonment was manifestly harsh and excessive, having regard to the circumstances of the offence and the prevailing sentencing jurisprudence. 8. In a Judgment delivered on 21st November 2024, the High Court dismissed the appeal in its entirety and affirmed both the conviction and the sentence imposed by the Court Martial. The Applicant expressly acknowledges that fact in Paragraphs 2, 3 and 4 of the Supporting Affidavit sworn in support of the present Application. HCCA. NO.E024 OF 2025 RULING - Page 3 of 15 9. Approximately five months after the delivery of the appellate Judgment, the Applicant instituted the present proceedings by way of the Notice of Motion dated 24th April 2025. Through the Motion, he invites this Court to revisit the legality, propriety, fairness and proportionality of the same sentence of thirty (30) years' imprisonment that had been impugned and subsequently upheld on appeal. 10. The Application is principally premised on the Applicant's age, his status as a first offender, his expression of remorse, the asserted absence of premeditation, his personal circumstances, and his alleged rehabilitation while in custody through vocational training, counselling, behavioral programmes, peer mentorship, faith-based initiatives, and restorative justice programmes. PARTIES SUBMISSIONS 11. The Applicant submits that the present Application raises a pure question of sentence and ought not to be construed as an appeal disguised as an application for revision. The Applicant contends that Sections 362 and 364 of the Criminal Procedure Code empower the High Court to examine the correctness, legality and propriety of a sentence imposed by a subordinate court, while Article 165(6) of the Constitution vests the High Court with supervisory jurisdiction over courts martial. 12. The Applicant further relies on Article 50(2)(p) of the Constitution and the principles of individualized sentencing enunciated in Muruatetu & Another –vs- Republic; Katiba Institute & 5 Others HCCA. NO.E024 OF 2025 RULING - Page 4 of 15 (Amicus Curiae) (Petition Nos. 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR). It is submitted that the Court Martial failed to adequately demonstrate the extent to which it considered the Applicant's mitigation in arriving at the sentence imposed, and that the custodial sentence of thirty (30) years' imprisonment is manifestly harsh and excessive in the circumstances of the case. 13. The Applicant further submits that constitutional rights ought not to be defeated by procedural technicalities or the principle of finality where the interests of justice require otherwise. The Court is accordingly urged to take into account the Applicant's post-conviction conduct, prospects of reintegration into society, and the rehabilitative objectives of sentencing. On that basis, the Applicant prays that the Preliminary Objection be dismissed, that this Court assumes revisionary jurisdiction, and that the sentence be reduced. 14. The Respondent opposes the Application through the Notice of Preliminary Objection dated 30th April 2026 and submits that the Notice of Motion is incompetent for want of jurisdiction. According to the Respondent, Sections 362 and 364 of the Criminal Procedure Code confer revisionary jurisdiction upon the High Court only in respect of proceedings and determinations of subordinate courts and do not empower the Court to revise its own appellate decision or that of another Judge of concurrent jurisdiction. 15. The Respondent further submits that Article 165(6) of the HCCA. NO.E024 OF 2025 RULING - Page 5 of 15 Constitution expressly excludes superior courts from the ambit of the High Court's supervisory jurisdiction. It is contended that, having challenged the sentence on appeal and the same having been affirmed by the High Court, the Applicant's grievance now lies, if at all, against the appellate Judgment itself. In those circumstances, the appropriate recourse was an appeal to the Court of Appeal, subject to the applicable law, and not a fresh application before this Court. 16. It is the Respondent’s submission that the issues concerning the legality, propriety, proportionality and severity of the Applicant's sentence were conclusively determined in Kiambu High Court Criminal Appeal No. E024 of 2024. The present Application is therefore said to be barred by the doctrines of functus officio, issue estoppel and the principle of finality of litigation, and to constitute an abuse of the court process. ANALYSIS AND DETERMINATION 17. Having considered the Application, the Notice of Preliminary Objection, the parties' respective submissions, and the applicable law, the sole issue falling for determination is: i. Whether this Court has jurisdiction to entertain the present Application. 18. The determination of this issue is dispositive of the Application. The Respondent's Preliminary Objection raises a jurisdictional question, namely, whether this Court possesses the legal mandate to reconsider a sentence which was the subject of a prior appellate determination by HCCA. NO.E024 OF 2025 RULING - Page 6 of 15 the High Court. It is therefore necessary, at the outset, to establish the nature and extent of the jurisdiction invoked by the Applicant, for a court can only exercise judicial authority within the limits conferred upon it by the Constitution and statute. 19. The Supreme Court in Macharia & Another –vs- Kenya Commercial Bank Ltd & 2 Others (Application No.2 of 2011) [2012] KESC 8 (KLR) authoritatively stated the principle governing the exercise of jurisdiction as follows:- “A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.” 20. The question that therefore falls for determination is not whether this Court possesses jurisdiction in the abstract, but whether the Constitution and the law confer upon it the particular jurisdiction invoked by the Applicant in the circumstances of this Application. The Court must consequently examine the nature of the proceedings that gave rise to the sentence, the jurisdiction exercised by the High Court HCCA. NO.E024 OF 2025 RULING - Page 7 of 15 when the Applicant's appeal was determined, and the extent of the revisionary and supervisory powers now relied upon. 21. Article 169(1)(c) of the Constitution classifies Courts Martial as subordinate courts. Decisions emanating from Courts Martial are therefore subject to such appellate and supervisory jurisdiction as is conferred upon the High Court by the Constitution and statute. Article 165(6) provides that the High Court has supervisory jurisdiction over Subordinate Courts and over persons, bodies or authorities exercising judicial or quasi-judicial functions, but not over a Superior Court. 22. The decision of the Court Martial was therefore a decision of a subordinate court capable of challenge through the appellate mechanisms provided by law. The Applicant exercised that right by lodging an appeal before the High Court. Upon determination of that appeal, the sentence imposed by the Court Martial ceased to be an unexamined decision of a subordinate court and became part of the final appellate determination of the High Court. 23. Section 362 of the Criminal Procedure Code provides that the High Court may call for and examine the record of criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of a finding, sentence or order, and as to the regularity of the proceedings. The statutory object is supervisory correction of subordinate court proceedings. It is not a jurisdiction to reopen a concluded High Court appeal. 24. Section 364(1), which sets out the powers exercisable by the High HCCA. NO.E024 OF 2025 RULING - Page 8 of 15 Court upon revision, similarly derives its application from proceedings before a subordinate court whose record has been called for. The statutory scheme therefore maintains a clear jurisdictional boundary: revision may correct errors occurring within subordinate court proceedings, but it does not create an avenue for reopening a concluded appellate determination of the High Court. 25. Revision is a narrow supervisory jurisdiction intended to correct illegality, impropriety, incorrectness or material irregularity in subordinate court proceedings. It cannot be converted into a second appeal after an appeal has been heard and determined. 26. The fact that the original decision emanated from a subordinate court does not preserve revisionary jurisdiction indefinitely where that decision has subsequently been subjected to and determined through an appellate process. Once an appellate court has considered and determined the decision, the legal character of the matter changes. The exercise of revisionary jurisdiction must therefore remain confined to the record and proceedings of the subordinate court whose decision is under scrutiny and cannot extend to the reconsideration of an issue already determined by a superior court. In such circumstances, the question ceases to be one of revision and becomes whether the Court is being invited to exercise supervisory jurisdiction over a decision of a superior court. 27. Article 165(6) of the Constitution does not confer upon the High Court supervisory jurisdiction over Superior Courts. The High Court is HCCA. NO.E024 OF 2025 RULING - Page 9 of 15 itself a superior court within the constitutional structure, and therefore one Judge of the High Court cannot assume a supervisory or appellate role over another Judge of concurrent jurisdiction. 28. In Bellevue Development Company Ltd –vs- Gikonyo & 3 Others; Kenya Commercial Bank & 3 Others (Interested Parties) (Civil Appeal 239 of 2018) [2018] KECA 330 (KLR) (21 September 2018) (Judgment), the Court of Appeal reaffirmed that the High Court cannot exercise supervisory authority over a fellow superior court. The constitutional structure protects hierarchical appellate review and prevents parallel or competing merits determinations by courts of coordinate jurisdiction. 29. The same conclusion has been applied directly in recent criminal sentence review decisions. In Nyaga –vs- Republic [2025] KEHC 16962 KLR, the High Court held that revision under Section 362 is limited to subordinate court decisions and does not permit the Court to revise a sentence imposed or affirmed by the High Court on appeal. 30. It follows that the jurisdiction conferred under Sections 362 and 364 of the Criminal Procedure Code cannot be invoked merely because an Applicant remains dissatisfied with the outcome of an appeal. The character of the relief sought, rather than the terminology used to describe the proceedings, determines whether the Court is being invited to exercise a lawful jurisdiction. A party cannot confer jurisdiction upon a court merely by the manner in which proceedings are styled or by the constitutional provisions invoked. The character of the relief sought, rather than the terminology used to describe the HCCA. NO.E024 OF 2025 RULING - Page 10 of 15 proceedings, determines whether the Court is being invited to exercise a jurisdiction lawfully conferred upon it 31. The Court must therefore examine the substance of the present Application and the reliefs sought, rather than the description assigned to it by the Applicant. The central inquiry is whether the Applicant seeks the exercise of the High Court's revisionary jurisdiction for the purpose for which it was constitutionally and statutorily conferred, namely, the correction of an illegality, impropriety, incorrectness or irregularity arising from proceedings before a subordinate court, or whether, in substance, the Applicant seeks a reconsideration of a determination already made by the High Court in the exercise of its appellate jurisdiction. 32. The distinction is material. Revision is not an alternative avenue of appeal available to a litigant who remains dissatisfied with the outcome of an appellate process. Its purpose is supervisory and corrective in nature, it is concerned with ensuring that subordinate courts act within the bounds of legality and propriety. It does not empower the High Court to reconsider the merits of a matter that has already been determined by the same Court in its appellate capacity. 33. Accordingly, where the decision sought to be examined is no longer merely that of a subordinate court, but is a determination made by the High Court after exercising appellate jurisdiction, any reconsideration of the merits of that decision would not amount to revision. It would, in substance, constitute an appeal or review against a decision of a court of concurrent jurisdiction. Such jurisdiction is neither contemplated HCCA. NO.E024 OF 2025 RULING - Page 11 of 15 under Sections 362 and 364 of the Criminal Procedure Code nor conferred upon this Court by Article 165 of the Constitution. 34. The Applicant's reliance on Articles 50(2)(p) and 159(2) of the Constitution and the sentencing principles discussed in Muruatetu & Another –vs- Republic; Katiba Institute & 5 Others (Amicus Curiae) (Petition Nos.15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) must equally be considered within that jurisdictional framework. Those constitutional and sentencing principles may inform the exercise of a jurisdiction that properly exists; however, they cannot be invoked to confer jurisdiction where none has been granted by the Constitution or statute. 35. The Notice of Motion dated 24th April 2025, at Prayer 1, expressly and explicitly invites this Court to “call for and examine the record of the trial proceedings in [the] Court Martial sitting at Kahawa Garrison vide Case No. 19 of 2022 and the appeal decision in Kiambu High Court Criminal Appeal No. E024 of 2024 for the purposes of satisfying itself as to the correctness, legality, or propriety of the sentence imposed upon the Applicant, in line with the principles of fairness and proportionality.” [ Emphasis Mine] 36. As admitted by the Appellant/Applicant at Paragraphs 2 and 3 of the Supporting Affidavit dated 24th April 2025, the Applicant was convicted for the offence of Murder under Section 203 as read with Section 204 of the Penal Code and sentenced to serve 30 years in prison by the Court Martial sitting at Kahawa Garrison. Thereafter, the Appellant/Applicant admits that he appealed both the conviction and HCCA. NO.E024 OF 2025 RULING - Page 12 of 15 the sentence by filing an appeal to the High Court being Kiambu High Court Criminal Appeal No. E024 of 2024. 37. The High Court, in that matter, already considered the questions of whether the sentence was harsh, excessive, and/or disproportionate. By dint of the subsequent Judgment of dated and delivered on 21 st November 2024 those questions are now res judicata in the High Court. 38. Additionally, the Applicant is expressly inviting this Court to review the relative merits of a decision of another superior court contrary to the express provisions of Article 165(6) of the Constitution. 39. Critically, the Applicant has invoked the provisions Sections 362 and 364 of the Criminal Procedure Code. Section 362 of the Criminal Procedure Code states: “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”. 40. Section 364 of the Criminal Procedure Code, also invoked by the Applicant, specifies the powers of the High Court in exercise of that power of revision. At Section 364(1), the law similarly expressly limits that revisionary power to decisions of a subordinate court. HCCA. NO.E024 OF 2025 RULING - Page 13 of 15 41. What the Appellant/Applicant is in essence aggrieved with is the decision of the High Court not to interfere with the sentence imposed by the Court Martial. That decision was arrived at within an appeal, which fully considered both the conviction and the sentence. 42. In the circumstances, I find and hold that:- a) The present Application invites this Court to call for and examine the record of the trial proceedings in [the] Court Martial sitting at Kahawa Garrison vide Case No.19 of 2022 and the appeal decision in Kiambu High Court Criminal Appeal No. E024 of 2024 for the purposes of satisfying itself as to the correctness, legality, or propriety of the sentence imposed upon the Applicant. b) The High Court has already considered the question of the correctness, legality, or propriety of the sentence imposed upon the Applicant within Kiambu High Court Criminal Appeal No. E024 of 2024 and the judgment dated and delivered on 21/11/2024 and thus the Application is res judicata and this Court is thusly also functus officio. c) The Application dated 24th April, 2025 calls for this Court to review the decision of another superior court, specifically the decision of the High Court contrary to Article 165(6) of the Constitution. d) The Application dated 24th April 2025 invokes revisionary powers of the High Court under Sections 362 and 364 of HCCA. NO.E024 OF 2025 RULING - Page 14 of 15 the Criminal Procedure Code but the same are only applicable to decisions of a subordinate court and not the High Court. e) For those reasons, this Court upholds the Respondent’s Notice of Preliminary Objection dated 30th April 2026 and dismisses the Notice of Motion Application dated 24th April 2025 and the main matter herein for want of jurisdiction. f) Each party to bear own costs. File closed accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KIAMBU ON THIS 22ND DAY OF JULY 2026. _________________________________ BAHATI MWAMUYE MBS JUDGE In the presence of: Farah counsel for the Appellant Ms. Muriu counsel for the State Court Assistant - Martin HCCA. NO.E024 OF 2025 RULING - Page 15 of 15