Wambua v Republic (Miscellaneous Criminal Application E082 of 2024) [2026] KEHC 11031 (KLR) (21 July 2026) (Ruling)

Wambua v Republic (Miscellaneous Criminal Application E082 of 2024) [2026] KEHC 11031 (KLR) (21 July 2026) (Ruling) Neutral citation: [2026] KEHC 11031 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Criminal Application E082 of 2024 JN Onyiego, J July 21, 2026 Between Mwanzia Wambua Applicant and Republic Respondent Ruling 1.The Applicant herein was charged with the offence of Incest Contrary to Section 20(1) of the Sexual Offences Act No.3 of 2006 to which he was convicted and sentenced to life imprisonment. Aggrieved by both conviction and sentence, he appealed to the High Court vide Criminal Appeal Number 295 of 2010 Machakos High Court which reaffirmed both the conviction and sentence. 2.Undeterred, he moved to the Court of Appeal vide Cr. Appeal No. 81 of 2017 which upheld the conviction but substituted life imprisonment with 40 years’ imprisonment. 3.Subsequently, he has now moved to this court vide a Notice of Motion dated 3-12-2025 seeking review of sentence on grounds that he has undergone rehabilitation and that the court failed to take into account the fact that he was aged 77 years hence not harmful to society. He urged the court to reduce his sentence to the period served (14 years). 4.In response, prosecution filed Grounds of Opposition urging the court to find that it was functus officio having pronounced itself on the same during the hearing of the appeal. That the sentence imposed is the minimum sentence for defilement of a minor of tender age. In that regard, the court was referred to the Supreme Court decision in Republic v Joshua Gichuki Mwangi Case (2024) (KLR) where the Court held that courts have no discretion when dealing with offences where minimum sentence is provided for. 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 RecordsThe 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. 3.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. 7.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. 8.In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence to the period served. 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). 9.This court has already pronounced itself on the issue of sentence. Its decision was appealed against and the sentence substituted to that of 40 years. Accordingly, this court is functus officio. In any event, the sentence provided in law for the offence committed is life imprisonment to which no court has discretion to interfere with pursuant to the Supreme Court decision in Joshua Gichuki Case (supra). To that extent, it is my finding that the application is devoid of merit hence. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 21ST DAY OF JULY 2026………………………………..J. N. ONYIEGOJUDGE