https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12288

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CRIMINAL MISC APPLICATION NO. E057 OF 2024** PAUL TARIKI KIREMA……………..………………APPLICANT VERSUS REPUBLIC………………………..………………RESPONDENT **RULING** 1. For determination is the Application filed on 16th October 2024 seeking sentence review and two specific orders as follows:- 2. That the court review the sentence given to the Applicant in line with constitutional and legal principles and orders that the court orders the sentences to run concurrently. 3. That the court varies the sentence into a non-custodial sentence. 4. The Application is supported by the Applicant’s sworn affidavit of even date. He urged the court to review his sentence stating that he has suffered irreparably behind bars and that he is now reformed and remorseful for his actions. That the court does consider and order that the sentences run concurrently and not consecutively as ordered. He also urged the court to consider the recommendations by the prison institution at Embu which shows that he has reformed. 5. The Application was canvassed by way of written submissions. The Applicant filed his written submissions on 24th March 2025. He raised the following issues for determination: - 6. Whether the Applicant’s constitutional rights were violated. 7. Whether this honourable court has jurisdiction to review the Applicant’s sentence. 8. Whether the Applicant is entitled to a reduction or modification of sentence. 9. The Respondent filed its written dated 28th April 2025 raising the following issues for determination: - 10. Whether the Petitioner is entitled to a sentence reduction. 11. Whether the imprisonment sentence that the Applicant is currently serving can be substituted to a non-custodial sentence for the remaining part of the sentence that he is serving. 12. I have carefully considered the Application dated 16th October 2024, the supporting affidavit, and the written submissions filed by both the Applicant and the Respondent. The following issues arise for my determination:- 13. **Whether this Court has jurisdiction to review the Applicant’s sentence** 14. **Whether the Applicant has demonstrated sufficient grounds to warrant review, reduction, or modification of his sentence.** 15. **Whether the Applicant is entitled to an order that his sentences run concurrently rather than consecutively.** 16. The Applicant urges this Court to review and vary his sentence on the basis that it is excessive and that the trial court failed to consider mitigating factors and the time he had spent in custody. He relies on Articles 165(3)(b) and 159 of the Constitution, and Sections 216, 329, and 333(2) of the Criminal Procedure Code, as well as the decisions in **Michael Wanjema v Republic[2015] eKLR** and **Douglas Njuguna Mwaura v Republic** **[2022] eKLR.** 17. The jurisdiction of this Court to review or interfere with a sentence is anchored in **Article 165(3)** of the Constitution and **Section 362 of the Criminal Procedure Code (CPC)**, which empower the High Court to call for and examine the record of any criminal proceedings before a subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order. Further, under **Article 50(2)(q)** of the Constitution, every convicted person has the right to appeal or apply for review of a sentence. 18. However, such jurisdiction is not exercised as a matter of course. The Court of Appeal in **Bernard Kimani Gacheru v Republic [2002] eKLR** emphasized that an appellate or reviewing court may only interfere with a sentence where it is shown that the trial court acted on the wrong principles, ignored relevant factors, took into account irrelevant considerations, or imposed a sentence that is manifestly excessive in the circumstances of the case. 19. The Applicant’s reliance on **Michael Wanjema v Republic [2015] eKLR** is well placed to the extent that it recognizes the Court’s authority to revisit a sentence where it appears there was an error or omission in applying key legal principles. Likewise, in **Douglas Njuguna Mwaura v Republic [2022] eKLR**, the Court exercised its discretion to review and adjust a sentence that did not reflect the principles of proportionality and fairness. 20. Each case must however be considered its own peculiar facts. The question before me is whether the Applicant has demonstrated that the sentencing court erred in principle or that the sentence imposed is disproportionate, illegal, or unfair. 21. From the record, the trial court considered the nature of the offences, the mitigating circumstances, and the Applicant’s plea before pronouncing the sentences. There is no indication that the trial court ignored material factors or failed to apply Section 333(2) of the Criminal Procedure Code, which requires consideration of the period spent in custody. 22. In the absence of evidence of such omission or misdirection, I find no legal or factual basis to interfere with the sentence. The Applicant’s plea for leniency, remorse, and reformation, though understandable, do not in themselves constitute sufficient grounds for review within the meaning of Section 362 of the Criminal Procedure Code. 23. Accordingly, I find that the Applicant has not demonstrated any error, illegality, or impropriety in the sentence imposed by the trial court to warrant this Court’s intervention. 24. The Applicant also seeks that the sentences imposed upon him be ordered to run concurrently rather than consecutively. He submits that he has reformed, and that it would be in the interests of justice for the Court to exercise discretion and order concurrency of sentences. 25. However, the record reveals that this very issue whether the sentences should run concurrently or consecutively was raised, canvassed, and determined in the Applicant’s earlier appeal to this court. The High Court (differently constituted) considered the circumstances of the offences and expressly declined to interfere with the sentencing order, having found that the trial court had properly exercised its discretion under **Section 14 of the Criminal Procedure Code**. 26. This Court must therefore address whether it can reopen and redetermine an issue that has already been conclusively adjudicated upon by a court of equal and concurrent jurisdiction. 27. This is a criminal case. However, the doctrine of *res judicata* is set out in Section 7 of the Civil Procedure Act is instructive. It provides:- ***No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.*** 1. The court in **Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another; Kinyanjui Njuguna & Company Advocates & another (Interested Parties) [2020] eKLR** explained the said section 7 as follows: ***“The doctrine will apply only if it is proved that:*** ***i. The suit or issue raised was directly and substantially in issue in the former suit.*** ***ii. That the former suit was between the same party or parties under whom they or any of them claim.*** ***iii. That those parties were litigating under the same title.*** ***iv. That the issue in question was heard and finally determined in the former suit.*** ***v. That the court which heard and determined the issue was competent to try both the suit in which the issue was raised and the subsequent suit.”*** 1. In the present case, the issue of whether the Applicant’s sentences ought to run concurrently rather than consecutively was **directly and substantially in issue** in the prior appeal. This court (Gitari J.) rendered a reasoned decision declining to interfere with the trial court’s sentencing order. That determination remains binding and final unless overturned by a superior court. 2. This court, being of concurrent jurisdiction cannot sit on review or appeal over that decision. Entertaining the Application afresh would offend the jurisdictional hierarchy of courts. 3. In the end, the Application has no merit and is dismissed. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 27th day of July, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Ruling delivered in the presence of the Applicant acting in person and Ms Rukunga for the Republic; Muriuki (Court Assistant).**