Mbati v Republic (Criminal Revision E228 of 2024) [2026] KEHC 13020 (KLR) (21 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HIGH COURT CRIMINAL REVISION NO. E228 OF 2024** **JOHNSTONE MULUILA MBATI…………………………………………..APPLICANT** **VS** **REPUBLIC……………………………………………………………..….RESPONDENT** ***(Being an Application Against Revision of Sentence delivered by Hon. C. Kariuki (Judge) on 12-07-2019 in H.C.CR.C 74 of 2017 Makueni High Court.)*** **RULING** 1. The Applicant therein was charged with the offence of **Murder Contrary to Section 203 as read out with Section 204 of the Criminal Procedure Code**. Particulars were that, on 25th day of March 2013, at Wote Township in Makueni County he murdered Christine Nzilani. 2. Having denied the charge, the case was fixed for trial. He was consequently convicted and sentenced to 30 years’ imprisonment. 3. Subsequently, he has now moved to this court vide an undated Notice of Motion seeking review of sentence so as to serve the remaining period on Probation. The application is based on grounds that; he has reconciled with the deceased’s family who have been compensated with blood money amounting to Kshs. 628,850/=; he is apologetic and remorseful. 4. Prosecution filed grounds of opposition terming the application as baseless. That the court having determined the issue of sentence is *functus officio*. That an order for retrial can only apply if there are new compelling reasons. That compensation of the victim’s family is not a new ground and therefore **Muruatetu Case** cannot apply as the Applicant was not sentenced to death. 5. The application was canvassed by way of submissions. The Applicant relied on his submissions dated 15-7-2025 basically quoting a variety of Case Law supporting reconciliation in criminal cases *inter alia* **R vs Priscillah Cherono Chebet Cr. Case Number 65 of 2011** and **Francis Kariuko Muruatetu & Ano. v Republic (Petitioner 15 & 16 of 2015** thus seeking resentencing as death penalty is not mandatory. He contended that the court should order for a retrial based on the new evidence that there has been compensation. 6. On its part, prosecution filed its submissions dated 15-12-2025 reiterating the Grounds of Opposition. It was submitted that the Applicant has not established the grounds for review of sentence hence this court has no jurisdiction. 7. 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. It was submitted that compensation is not new compelling evidence to warrant a retrial. That **Muruatetu Case** does not apply in this case as the circumstances are different. 8. I have considered the application herein and the response thereof. The only issue for consideration is whether the application is merited. 9. 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 its mandate and therefore reduce the sentence on grounds that there is new evidence to warrant a retrial or downward review of sentence owing to the compensation made. The claim that compensation has been made to the victim’s family is not a new ground to warrant a retrial or resentencing. This court having determined sentence is *functus officio* hence has no jurisdiction to re visit the same. 3. 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).** 4. In view of the above holding, it is my finding that the application is devoid of merit hence dismissed. Dated, signed and delivered in open court this **21st** day **August** **2026** **………………………………..** **J. N. ONYIEGO** **JUDGE**