https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11334

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI ANTI CORRUPTION AND ECONOMIC CRIMES DIVISION HCACEC MISC APPLICATION NO. E023 OF 20 26 IN THE MATTER OF REVISION OF SENTENCE PHILIP MUTUA KILONZO……………..…………………..…..APPLICANT BETWEEN VERSUS REPUBLIC………………………………………………………RESPONDENT RULING 1. By a Notice of Motion Application dated 2 June 2026 brought under Section 333 (2) of the Criminal Procedure Code and Section 95 of the Prisons Act, the applicant seeks the following Orders; a. THAT the Honourable Court be pleased to call for and examine the records in Milimani Anti -Corruption Case No. E008 of 2024 for purposes of satisfying itself as to the correctness, legality and propriety of the sentence and computation thereof. b. THAT the Honourable Court be pleased to order that the period of two (2) weeks spent by the Applicant in remand custody prior to release on bail be taken into account and deducted from the sentence currently being served pursuant to Section 333(2) of the Criminal Procedure Code and Sentencing guidelines. c. THAT this Honourable Court be pleased to direct and/or authorize the payment of the fine imposed in Count three (3) in lieu of continued imprisonment. 1 d. THAT this Honourable Court be pleased to issue any further orders that meet the ends of justice. 2. The application is premised on the grounds set out in the Motion and in the Supporting Affidavit of Philip Mutua Kilonzo sworn on 2 June 2026. The application was opposed by the Respondent who filed a response dated 8 July 2026. 3. The Applicant’s case is that he was convicted and sentenced to two (2) years imprisonment or in default to pay a fine of Ksh. 1,500,000.00 in Count 1 and 2, and eight (8) months imprisonment or in default to pay a fine of Ksh. 50,000.00 in Count 3. That being dissatisfied, he filed an appeal against the finding and sentenced at the High Court where upon hearing, the High Court dismissed Count 1 on grounds that it was duplicitous of Count 2 and upheld the sentences in Count 2 and 3. 4. He averred that he does not contest the sentence imposed by the High Court on appeal but seeks that the time spent in remand prior to his release on bail amounting to two (2) weeks be deducted from his sentence as provided in Section 333 (2) of the Criminal Procedure Code. He further stated that he has been unable to pay the fine imposed in Count 3 due to administrative challenges in the court registry. He sought intervention of the court, urging that he was remorseful, rehabilitated and of good conduct. 5. The respondent opposed the application and urged that this court lacks jurisdiction to supervise or review decisions of a superior court of equal status. It was contended that the applicant is seeking for revision of a High Court decision which is outside the powers of revision contemplated under Article 165 (6) of the Constitution since the said Article limits the revision and/or supervisory powers to decisions and/or actions by subordinate courts. 6. The case was heard through oral submissions where the applicant appeared in person while the Mr George Mongare, learned Counsel appeared for the Respondent. The Applicant, ion his submissions, reiterated that he was convicted by the Chief Magistrates Court Case No. E008 of 2024 and sentenced as aforesaid. That he filed 2 appeal at the High Court and upon hearing, the High Court quashed Count 1 but affirmed the finding sentence in Counts 2 and 3. He contended that the High Court however, failed to consider the period spent in pretrial detention as required under Section 333 (2) of the Criminal Procedure Code and urged the court to exercise its revision powers and order that the said period of approximately two (2) weeks be deducted from his sentence. 7. The respondent submitted that the application for review is not proper before the court since the matters in question were properly heard and determined by a court of concurrent jurisdiction in appeal. He argued that the only recourse available for the applicant is to file appeal at the Court of Appeal against the decision of the High Court. The cases of Ahamad Abolfathi Mohammed & another vs Republic (2018) eKLR was cited in support. 8. The respondent further submitted that the court lacks jurisdiction to supervise, review or sit on appeal against decisions of the High Court being court of concurrent jurisdiction. Reliance was placed on the case of Eliud Wafula Maleo vs Republic and Republic vs Karisa Chengo & 2 others. (petition 5 of 2025) (2017) KESC 15. The court was urged to dismiss the application. 9. I have considered the application, the supporting affidavit, the respondent’s response and submissions by the parties. The single issue for determination is whether this Court has jurisdiction to recall and review the sentence imposed by the trial court in the circumstances. 10. The applicant avers that the initial sentence by the trial court was reviewed on appeal by the High Court where Count 1 was quashed and Count 2 and 3 upheld. The applicant argues that the High Court did not take into account the two weeks he spent in pretrial detention in its sentence as provided under Section 333 (2) of the Criminal Procedure Code and has approached this court by way of revision to call the lower court’s file and reconsider the sentence in Count 2. 3 11. The law governing revision in a criminal case is captured under Section 362 and 364 of the Criminal Procedure Code. It stems from Article 165 (6) and (7) of the Constitution which provides as follows: “(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. (7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” 12. It is clear from the provisions of Article 165 (6) of the Constitution that High Court cannot review decisions of another High Court. Thus, this court cannot review, vary or set aside the sentence imposed by another court of equal jurisdiction once the matter has been determined. This position arises from the doctrine of stare decisis and the hierarchical structure of the courts, which safeguard consistency, orderliness and finality in litigation. 13. 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. 14. Thus in Republic vs Karisa Chengo & 2 Others (2017) eKLR, the Supreme Court affirmed that a High Court judge lacks jurisdiction to revisit or alter a sentence imposed by another High Court judge unless through a statutory review mechanism or an appeal to a higher court. 15. Similarly, in Joseph Nduvi Mbuvi vs Republic (2019) eKLR, the Court of Appeal reiterated that no High Court judge may sit on appeal over the decision of 4 a judge of concurrent jurisdiction, as doing so would undermine judicial consistency and certainty. 16. In the circumstances, this matter having been determined by the High Court sitting on appeal, the Applicant’s request for revision of sentence is untenable. Entertaining such an application would amount to sitting on appeal against a High Court decision, contrary to Article 164 (3) of the Constitution, which vests appellate jurisdiction in the Court of Appeal. 17. Accordingly, I find the Notice of Motion dated 2 June 2026 devoid of merit and is hereby dismissed. Signed, dated and delivered virtually at Nairobi on this 14th day of July 2026 JOSEPH KIPKOECH BIOMDO JUDGE 5