https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9003

Kungu v Republic (Petition E002 of 2025) [2026] KEHC 9003 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 9003 (KLR) Republic of Kenya In the High Court at Homa Bay Petition E002 of 2025 JR Karanja, J June 8, 2026 Between Michael Juma Kungu Applicant and Republic Respondent (Originating from HCCR Rev. No. 42 of 2024 at Homabay Criminal Appeal 103 of 2018, Criminal Case 42 of 2014 ) Ruling 1.The application vide the notice of motion dated 13th May 2025, was made by the applicant, Michael Juma Kungu, essentially seeking review of the sentence imposed upon him in Homabay High Court Criminal Case No. 42 of 2014 in which he was charged together with another with the offence of murder, contrary to section 203 read with section 204 of the Penal Code and was convicted after the trial and sentenced to suffer death as provided by law. 2.On appeal, the Court of Appeal at Kisumu in Criminal Appeal No. 103 of 2018 did on the 24th November, 2023, allow the appeal on sentence and remitted the case back to the High Court for a re-sentence hearing which was apparently conducted on 19th June 2024, resulting in a second death sentence for the applicant. A window for a second appeal on sentence was thus opened for the applicant, but he opted to file the present application instead of filing an appeal at the Court of Appeal, thereby desisting from exhausting the entire appeal process. 3.In the circumstances, the present application may be treated as being pre-mature. Be that as it may, the application was brought under section 327(2), 346, 362 and 364 of the Criminal Procedure Code as well as article 50(2)(q) of the Constitution of Kenya 2010.Section 327 of the Criminal Procedure Code generally provides for the power to reserve questions arising in the course of a trial in the following terms:-“1.When a person has in a trial before the High Court been convicted of an offence, the judge may reserve and refer for the decision of a court consisting of two or more Judges of the High Court any question which has arisen in the course of the trial and the determination of which would affect the event of the trial.” 4.Sub-section (2) of the provision provides that:-“If the Judge reserves any such question the person convicted shall, pending the decision thereon, be remanded to prison or be admitted to bail, and the High Court may review the case on such part thereof as may be necessary, and finally determine the question and thereupon may alter the sentence passed by the trial judge and pass such judgement or order as the high court may deem fit.” 5.In no way does section 327 CPC provides for sentence review under the circumstances giving rise to this application which circumstances are clearly ideal for an appeal to the court of appeal on sentence or even both sentence and conviction (if at all).The power of the High Court to call for the records of any criminal proceeding before any subordinate court is anchored on section 362 of the Criminal Procedure Code. The purpose of such action is for the high court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and also as to the regularity of any proceedings of any such subordinate court. 6.Article 50(2)(q) of the Constitution was also invoked herein by the applicant, but it cannot apply to this matter in as much as it allows an applicant to appeal or apply for review by a higher court as prescribed by the law. The higher court in the circumstances of this case would mean and include the Court of Appeal, as this court cannot purport to sit on appeal against its own decision or that of a court of equal status. 7.For all the reasons foregoing, the present application is improper and incompetent before this court. The provisions of the law invoked by the applicant in bringing the application are irrelevant and from his submissions it is clear that the applicant did not really know what he actually desired and how he expected this court to assist him. On one hand he challenges the constitutionality of the sentence imposed upon him and on the other hand he seeks a reduction of his sentence based on mitigating factors which had already been considered by the trial court and/or sentencing court and also based on the period he remained in custody during the trial upto the time of sentence. All these are issues which ought to have been raised in the sentencing proceedings. 8.This application is an attempt for a second or even third bite at the cherry. It is unmerited and is hereby dismissed. The applicant ought to consider an appeal to the Court of Appeal. DATED DELIVERED AND THIS 8TH DAY OF JUNE, 2026.J. R. KARANJAHJUDGE