https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7835

Kimondiu v Republic (Criminal Revision E218 of 2024) [2026] KEHC 7835 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 7835 (KLR) Republic of Kenya In the High Court at Makueni Criminal Revision E218 of 2024 JN Onyiego, J June 5, 2026 Between Samson Muthenya Kimondiu Applicant and Republic Respondent (Revision from the Sentence of Hon. P. Wambugu (SRM) Kilungu delivered on 18th July 2016) Ruling 1.The applicant herein was charged before Kilungu SPM’s Court in Criminal Case Number 90 of 2016 with the offence of Grievous Harm Contrary to Section 234 of the Penal Code. 2.Having denied the charge, the case was scheduled to full trial but he later on changed plea and pleaded guilty. Consequently, he was found guilty and sentenced to 20 years’ imprisonment. Aggrieved by the said decision, he appealed to the High Court at Makueni vide Criminal Appeal No.108 of 2017 whereby his appeal was dismissed. 3.Dissatisfied, he moved to this court vide a Notice of Motion dated 19-7-2024 seeking review of his sentence by taking into account the period spent in remand custody. 4.In response, the prosecution urged the court to uphold the sentence as it was legal and that it had no objection to the court taking into account Section 333(2) of the Criminal Procedure Code. 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 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 v Republic. 8.In the instant case, the court is being asked to consider the period spent in remand pending trial. It is trite law that the proviso under Section 333(2) of the Criminal Procedure Code, does provide that, a trial court is duty bound to consider the period spent in remand before sentence. See Ahamad Abolfathi Mohamed & Another v Republic (2018) eKLR. 9.In the instant case, the applicant was arrested on 12-2-2016 and sentenced on 13-7-2016 translating to 5 months. Accordingly, the applicant shall serve his sentence less 5 months. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF JUNE 2026J.N.ONYIEGOJUDGE