https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12513

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ISIOLO** **CRIMINAL REVISION NO E029 OF 2025** **MORRIS MWITI MBUTHI .................................................APPLICANT** **VERSUS** **REPUBLIC ........................................................................... RESPONDENT** **RULING** 1. The Applicant has moved this court seeking for review of sentence. The review sought is for the court to consider the period that the Applicant spent in custody prior to conviction and to have he said period discounted from period of sentence meted out by the trial court. 2. The proviso to Section 332 (2) of the Criminal procedure code requires the court to factor in the time that convicted person had spent in remand, prior to conviction. The section provides as follows: *“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 as otherwise provided in this code Provided that where the person sentenced under Sub Section (1) has, prior to such sentence, been held in custody; the sentence shall take account of the period spent in custody”.* 1. The Review jurisdiction of High Court is founded on Article 165(6) of the Constitution and Sections 362- 367 of the Criminal Procedure Code (CPC). Under Section 362, of the CPC the high Court may call for and examine the record of any criminal proceedings before a subordinate court for the purposes 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 the proceedings. 2. However, Article 165 (6) expressly provides that the supervisory jurisdiction of the High Court is only limited to supervision of the subordinate courts, not other superior courts. Under Article 162(1) and (2) the superior courts are the “Supreme” Court, the Court of Appeal, the High Court and other courts of equal status as the High Court. 3. The Applicant was tried and convicted by the chief Magistrate’s court in Isiolo. He moved to the High Court in Meru on Appeal, challenging both the conviction and sentence. The Appeal was dismissed. A second Appeal to the Court of Appeal at Nyeri was equally dismissed. Both Appellate courts made a finding on both conviction and sentence. Thus, both superior courts did express themselves on the sentence that had been meted out to the Applicant. 4. In bringing this Application for review, the Appellant is inviting this court not only to review orders of superior courts but to review the orders of the court of Appeal, which court actually supervises this court. That is not tenable in law. 5. In brief, this court has no jurisdiction to review the Applicant’s sentence, which though initially passed by a subordinate court, was affirmed by the high court and the court of Appeal. Any plea for review should have been presented to the high court or the court of Appeal at the time of the hearing of the Appeals. 6. Consequently, Application is hereby struck off. Dated, Signed and delivered at Isiolo, this 30th day of July, 2026 S. Chirchir Judge In the presence of: - Roba Katelo-Court Assistant The Applicant