https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10373

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HIGH COURT REV. NO. E005 OF 2026** **JOSEPH KATUA NGUNDO…………………………………....................APPLICANT** **VS** **REPUBLIC……………………………………………………………..….RESPONDENT** ***(Being Revision Application against the Sentence of Hon.J.N.Mwaniki delivered on 2-3-2022 in Criminal case No. E311 of 2021 Makueni C.M’s Court)*** **RULING** 1. The Applicant herein was charged with two Counts of **Arson Contrary to Section 332(a)** **of the** **Penal Code** in that he willfully set fire on a semi-permanent house of Mariana Kamote Kingwaa valued at Kshs. 1M **(count 1)** and second count**,** he **set on fire the house of Petronillah Mutinda** valued atKshs. 700,000/=.Count three he faced the charge of **causing Grievous Harm** to Mariana. 2. Having denied the charges, the case was fixed for full trial. Consequently, he was convicted and sentenced to 30 years imprisonment for each count and sentences to run concurrently. Aggrieved by both the conviction and sentence, he appealed to the High Court. His appeal was partially allowed by the court thus confirming the conviction but reduced sentence to 15 years for each count and the same to run concurrently. 3. Subsequently, he has now moved to this court vide a **Notice of Motion** dated January 2026 seeking review of his sentence to a non-custodial sentence preferably probation on grounds that he is aged 60 years old and his health is not good. 4. In response, prosecution urged that the court was *functus officio* having pronounced itself on appeal and that his mitigation was considered by the trial court. 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 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 Applicant is seeking sympathy on account that he has been in custody long enough and that he is old and in bad health. I do agree with the prosecution that the court is *functus officio* as it has already pronounced itself hence cannot assume appellate jurisdiction on its own judgment. As to age and bad health he can receive medication while in custody. Accordingly, application is dismissed. Dated, signed and delivered in open court this **10th** day of **July 2026** **………………………………..** **J. N. ONYIEGO** **JUDGE**