https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9330

Miriti v Republic (Criminal Revision E038 of 2025) [2026] KEHC 9330 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9330 (KLR) Republic of Kenya In the High Court at Chuka Criminal Revision E038 of 2025 RL Korir, J June 25, 2026 Between Phares Mutembei Miriti Applicant and Republic Respondent Ruling 1.Phares Mutembei Miriti (Applicant) was the 1st Accused in Criminal Case No. 11 of 2020. They were tried and convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 2.In a sentence issued on 12th October, 2022, Gitari J. sentenced the Applicant and his co-accused to 22 years imprisonment. 3.The Applicant has now approached this court vide his Application dated 3rd April 2025 to seek a review of his sentence. He stated that he did not appeal to the court of appeal but opted for this review. 4.The Applicant further stated that he was a first offender which qualified him for a non-custodial or lenient sentence; that he was the father of 9 children whose lives and education were now at risk as he was their sole bread winner. He further stated that he was ready for reintegration back to society. 5.In written submissions dated 24th February 2026, the Applicant stated that he enjoyed equality before the law yet he had been discriminated by being given a harsh custodial sentence while other offenders have benefited from non-custodial sentences. He cited the celebrated Muruatetu case as having restored the discretion of judges in sentencing. The Applicant asked for a variation of his sentence to a non-custodial sentence. He relied on section 4(1) and (2) of the Probation of Offenders Act. 6.The Applicant stated mitigating circumstances including the fact that he is now sickly; that his children were suffering; that he was rehabilitated and that his long sentence violated Article 28 of the Constitution. 7.The Application was opposed by the Respondents. In submissions dated 20th April 2026, the Respondent stated that the Applicant’s sentence was legal, just and fair and the sentencing court had taken into consideration all relevant factors in meting the sentence. That the sentence was lenient in view of the prescription of a death sentence provided under section 204 of the Penal Code. 8.The Respondent submitted that the review application lacked merit. 9.Both parties acknowledged that the Applicant was tried, convicted and sentenced by the high court (differently constituted). This raises the legal issue whether or not this court has jurisdiction to review the sentence meted out by a court of concurrent and equal jurisdiction. The wide powers of revision donated to this court by the Constitution under Article 165 and the Criminal Procedure Code and under section 362 are exercisable over decisions of subordinate courts and quasi judicial bodies. 10.Article 165 (6) of the Constitution provides:-“165(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.” 11.Section 362 of the Criminal Procedure Code provides:-“362.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.” 12.It is my finding from my reading of the law above and the existing hierarchy of courts, that this court has no jurisdiction to revisit the sentence issued by Gitari J. 13.I am persuaded in so holding by the decision of Lesiit J. (as she then was) in Moses Dola vs. Republic [2021] KEHC 6180 (KLR) that:-“The law is clear that the period a person was held in custody prior to being sentenced shall be taken into account. The sentence in this case was imposed by Lagat-Korir, J, a court of parallel jurisdiction, which was the trial court in this matter. That means that if the Applicant was aggrieved in the manner in which the period he spent in custody before sentence was considered, or not, his recourse is not before this court. His grievance should be addressed on appeal before the Court of Appeal.He cannot return back to this same court to consider his grievance, for two reasons. First and most, it is this court which passed the impugned sentence. Having delivered itself on the matter, this court is functus officio. Secondly, the grievance he now has should be a ground of appeal which can only be considered on appeal before the Court of Appeal.” 14.In the end, I decline the invitation to review the sentence. The Applicant ought to exercise his right of appeal to the court of appeal. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 25TH DAY OF JUNE, 2026...........................R. LAGAT - KORIRJUDGERuling delivered in the presence of Applicant acting in person, Ms Gakumu for the Republic. Muriuki Court Assistant.