https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7993

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **MISC. CRIMINAL APPLICATION NO. E020 OF 2024** **MUNGANI MANGATI……………………………………………………APPLICANT** **VS** **REPUBLIC……………………………………………………………..….RESPONDENT** **RULING** 1. The applicant herein was charged before Makueni SPM’s Court in Criminal Case Number 528 of 2010 with the offence of **Robbery with Violence** Contrary to **Section 296(2)** of the **Penal Code**. 2. Having denied the charge, the case proceeded to full trial. Consequently, he was found guilty and sentenced to death. Aggrieved by the said decision, he appealed to the High Court at Machakos vide Criminal Appeal No.33 of 2013 whereby his appeal was dismissed. Undeterred, he appealed to the Court of Appeal vide Criminal Appeal No. 56 of 2014. The appeal was also dismissed. Luckily, his sentence was commuted to life imprisonment by his Excellency the President. 3. Dissatisfied, he moved to this court vide a Notice of Motion dated 8-4-2026 seeking review of his sentence to a definite jail term. He claimed that life imprisonment is unconstitutional. He relied on the **Muruatetu vs Republic** **Case** in which the Supreme Court substituted death penalty with imprisonment term. He further relied on the case of **Oprodi Peter Omukanga** **vs Republic Criminal Appeal No. 260 of 2019 Eldoret Court of Appeal** where the Court emphasized on the right to a fair trial. He further urged the court exercise discretion to resentence him to a specific jail term other than life imprisonment which is indefinite. 4. The prosecution/respondent opposed the application by filing Grounds of Opposition dated 20-5-2025 urging that this court has no jurisdiction to hear the application as it is *functus official*. It was further contended that the applicant is seeking this court to sit on its own judgement as an Appellate Court. 5. I have considered the application 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 court is being asked to exercise discretion to resentence him to a definite jail term. The applicant is claiming that life imprisonment is unconstitutional and erodes human dignity. It is trite that sentencing is at the discretion of the trial 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)(2002)KECA 94(KLR)(20 February 2002)(Judgment)**. 3. In **Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment)**, the Supreme Court held that courts are bound by legislation on minimum sentences hence no discretion until the law is amended. Further, in **Muruatetu II Case**, the Supreme Court was specific that it only applied to murder cases and no other case. In view of those decisions and bearing in mind that this court has already pronounced itself, it has no jurisdiction to revisit the matter again. It is simply *functus officio*. Accordingly, the application is not merited hence dismissed. Dated, signed and delivered virtually this **5th** day of **June 2026** **………………………** **J. N. ONYIEGO** **JUDGE**