https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11016

Terer v Republic (Criminal Miscellaneous Application E027 of 2025) [2026] KEHC 11016 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11016 (KLR) Republic of Kenya In the High Court at Kericho Criminal Miscellaneous Application E027 of 2025 JC Mutai, J July 16, 2026 Between Vincent Terer Applicant and Republic Respondent Ruling Background 1.This ruling is in respect of the Notice of Motion application dated 4th May 2025. The brief facts are that the Applicant was arrested and charged in High Court Criminal Case No. 12 of 2017 at Kericho High Court with the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. Pursuant to a plea bargain agreement which he voluntarily entered into and consented to, he was convicted and sentenced on 5th November 2018 to serve 20 years' imprisonment. 2.The Applicant now seeks a review of that sentence to a more lenient one. The application is premised on the following grounds: a. That he was charged with and convicted of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code in Criminal Case No. 12 of 2017 at Kericho, and sentenced to 20 years' imprisonment; b. That he did not appeal to the Court of Appeal, and this is the reason for bringing the present application; c. That he initiated a reconciliation process with the family of the deceased, and that both parties reached an agreement which is now on record; d. That this Court has competent jurisdiction to hear and determine the application under Article 165(3)(b) of the Constitution of Kenya, 2010; e. That the Court be pleased to award him a lenient, definite sentence pursuant to Article 50(2)(p) and (q) and article 159(2) of the Constitution of Kenya. 3.The Applicant further prayed that the remainder of his sentence be commuted to probation under the Probation of Offenders Act (Cap 64), and that the sentence be reviewed to a non-custodial one having regard to the facts and circumstances of the offence. 4.At the hearing on 14th July 2026, the Applicant submitted that he has reformed through correctional and disciplinary programmes; that he has undertaken theological and CPA studies while in custody; and that he has been promoted to the special category stage in recognition of exemplary conduct. 5.He further submitted that he has a young daughter, who was barely two years old when he was incarcerated, who lacks fatherly love and attention and is presently in the care of her mother, who has since become part of his family. He stated that he wishes to take responsibility for the deceased's daughter as a way of giving back to the family of the deceased. 6.The Applicant submitted that this Honourable Court has unlimited jurisdiction to entertain the Application and relied on the objectives and principles enunciated under the Sentencing and Policy guidelines, 2023 and the recent jurisprudence of emphasizing restorative justice in light of the period served, the rehabilitation and good conduct of the Applicant, reconciliation and restorative justice achieved and the mitigating circumstances surrounding the offence. 7.He further submitted that he is a trained nurse and would, if released, wish to use his nursing qualifications to serve the community and thereby better himself and society. He urged the Court to substitute his custodial sentence with probation or a Community Service Order in the interest of justice. 8.The State opposed the application. Learned State Counsel submitted that the Applicant was sentenced by the High Court pursuant to a plea bargain agreement, that he has been serving his 20-year sentence since 21st November 2018, and that this Court is functus officio and lacks jurisdiction to entertain the application, the only available remedy being an appeal to the Court of Appeal. Analysis and Determination 8.Three issues fall for determination: first, whether this Court has jurisdiction to entertain the application; second, if it does, whether the grounds relied upon disclose a basis for revision; and third, whether the alternative prayer for a probation or community service order is available to the Applicant at this stage. (i) Jurisdiction 9.The revisionary jurisdiction invoked is donated by Article 165(6) of the Constitution, which provides that "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," and given statutory effect by Sections 362 and 364 of the Criminal Procedure Code. Section 362 empowers the Court to "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." Section 364(1) sets out the orders the Court may then make, while Section 364(2) requires that no order be made to an accused person's prejudice without a hearing. 10.It is settled, and has been reaffirmed in a long line of decisions, that this revisionary jurisdiction runs downward from the High Court to subordinate courts; it is not a jurisdiction the High Court can turn upon its own decisions. As was held in Criminal Revision E007 of 2024 (Nyamira, 13th June 2024), "this Court cannot call for its own record and exercise jurisdiction over a decision over which it has already become functus officio," the proper forum for an aggrieved party being the Court of Appeal. The point was put pithily in Joseph Maburu alias Ayub v Republic [2019] eKLR: "Sentencing is a judicial exercise. Once a judge or a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it is the appellate one." The doctrine of functus officio itself was explained in Jersey Evening Post Ltd v Al Thani [2002] JLR 542 at 550, cited with approval by this Court in several revision rulings — to the effect that a court is functus once it has performed all its duties in a matter, subject only to the correction of clerical errors; the doctrine exists to secure finality. 11.The sentence the Applicant now impugns was passed by this very Court, following a plea bargain agreement to which he was a consenting party, after due compliance with Section 216 of the Criminal Procedure Code and after his mitigation was received and considered. It is therefore not a "finding, sentence or order" of a subordinate court capable of being called up for revision under Sections 362 and 364; it is this Court's own decision, over which this Court became functus officio the moment it was pronounced. Indeed, this Court does not have the unlimited jurisdiction as prayed. On this ground alone the application is incompetent. (ii) Even if jurisdiction existed, the grounds disclosed do not warrant revision 12.Even taking the application at its highest, that is, assuming for argument's sake that the jurisdictional bar in paragraph 11 above did not exist, the grounds relied upon by the Applicant would still not sustain the application. 13.First, Ground (b) is fatal to the Applicant's own case. Section 364(5) of the Criminal Procedure Code provides in the plainest terms: "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." The Applicant candidly admits he did not appeal. This is precisely the situation the sub-section was designed to foreclose. As was explained as long ago as Republic v Ajit Singh s/o Vir Singh [1957] EA 822 at 824, construing the predecessor provision in identical terms, the sub-section means that where a right of appeal existed and was not exercised, revision will not be entertained at that party's instance. 14.The same principle has been applied to dismiss review applications in, among others, Kinuthia v Republic [2023] KEHC 25454 (KLR) and Criminal Application E146 of 2021. Revision is, as was observed in Reuben Mwangi Nguri v Republic [2021] eKLR, "by no means to be taken as an appeal by the aggrieved party," and a court exercising it "should steer clear from trespassing into the realm of appellate jurisdiction." It is, "a unique corrective jurisdiction and not a fall-back position for the aid of the indolent would-be appellant." 15.Second, Ground (c), that the Applicant has reconciled with the family of the deceased, does not, without more, found a basis for revision. This is squarely settled by Phineas Mugambi Mutethia vs. R. Criminal Review 127 of 2020 (Embu, 20th January 2021), where an application premised on precisely this ground, that the applicant "has reconciled with the victim and as thus this court ought to grant alternative dispute resolution methods", was held not to be a matter capable of founding revision under Section 364, the applicant having in addition failed to demonstrate that the trial court "acted on a wrong principle" or "overlooked some material fact" per the established test in Bernard Kimani Gacheru v Republic [2002] eKLR. 16.Revision, and indeed appeal, exists to correct illegality, incorrectness, or impropriety in a finding or sentence, not to reopen a concluded matter on account of subsequent reconciliation between the parties, however commendable that reconciliation may be. This Court does not discount the value of the restorative step the Applicant has taken; it simply is not, in law, a ground upon which this Court (even if seized of jurisdiction) could revise a lawfully imposed sentence. 17.Third, the balance of the Applicant's case, his rehabilitation, educational and vocational achievements in custody, his family circumstances, and his stated wish to support the deceased's child, are all matters properly weighed at the point of sentencing or on appeal, where an appellate court exercising its ordinary jurisdiction may reassess the sentence on its merits. They do not, however commendable, disclose an "illegality, incorrectness or impropriety" in the original sentence of the kind that would engage the Court's supervisory jurisdiction under Article 165(6), which, as was emphasised in George Aladwa Omwera v Republic [2016] eKLR, "does not exercise appellate jurisdiction" and cannot be used to "review or reweigh evidence upon which the determination of the lower court is based." (iii) The prayer for probation or a community service order 16.Finally, the Applicant's prayer that the remainder of his sentence be commuted to probation or a community service order cannot be granted at this stage. A probation order under the Probation of Offenders Act (Cap 64) is a sentencing option available to a court at the point of conviction and sentence, in lieu of a custodial sentence, having regard to a pre-sentence report and the factors set out in Section 4 of the Act. It is not a mechanism by which a court, least of all one that is functus officio and lacks revisionary jurisdiction over its own judgment, may retrospectively convert a custodial sentence already being served into a non-custodial one. The same reasoning applies with equal force to the prayer for a Community Service Order under the Community Service Orders Act, No. 10 of 1998. Any relief of that nature, if available to the Applicant at all, would properly lie either on appeal or through the established administrative channels for review of long-serving prisoners, such as recommendation by the Power of Mercy Advisory Committee under the Power of Mercy Act, or through the ordinary parole/aftercare mechanisms administered by the Probation and Aftercare Service, not through a revision application before this Court. 17.For completeness, it bears restating that Article 50(2)(q) of the Constitution, upon which the Applicant partly relies, itself confirms rather than assists his position: it guarantees a convicted person "the right to appeal to, or apply for review by, a higher court as prescribed by law" that is, the Court of Appeal, not the very court whose sentence is impugned. Determination 18.For the foregoing reasons, this Court finds that: a. it lacks jurisdiction to revise its own sentence, having become functus officio upon passing it; b. even if jurisdiction existed, none of the grounds pleaded, non-appeal, reconciliation, or post-sentence rehabilitation, discloses a basis upon which the sentence could be revised; and c. the alternative prayer for probation or community service is not available at this stage by way of revision. 19.The Notice of Motion application dated 4th May 2025 is accordingly found not merited and is hereby dismissed. The Applicant is at liberty to pursue such other lawful remedy, including an appeal out of time to the Court of Appeal, or engagement with the Power of Mercy and Probation and Aftercare Service mechanisms, as may be available to him. DELIVERED AT KERICHO ON 16TH JULY 2026CHELANGAT MUTAIJUDGE16/7/2026In the presence ofLoice Osoro for the StateVincent Kipngeno Terer – Applicant