https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12157

Mwandama v Republic (Criminal Revision E004 of 2026) [2026] KEHC 12157 (KLR) (Anti-Corruption and Economic Crimes) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12157 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Anti-Corruption and Economic Crimes Criminal Revision E004 of 2026 JK Biomdo, J July 31, 2026 IN THE MATTER OF SENTENCE REVIEW OF CHIEF MAGISTRATES ANTI-CORRUPTION COURT AT MILIMANI CASE NO. MCAC/E003/2023 Between Zinje Jumaa Mwandama Applicant and Republic Respondent Ruling 1.By a Notice of Motion Application dated 5 June 2026 brought under Articles 22,23,25 (c), 27, 28, 48, 50 (2) (p) and 159 of the Constitution, Sections 362, 364 and 333 (2) of the Criminal Procedure Code and all other enabling provisions of the law, the applicant seeks for review and/or revision of the sentence imposed against him in Count IV praying that the sentence therein runs concurrently with the sentences in Counts I, II and III. 2.He also seeks for an order of commutation of sentence on grounds that the period already served be deemed sufficient, he has since rehabilitated and is remorseful, praying that he serves the remainder of his sentence out of prison under probation or any other non-custodial arrangement. Thirdly, he seeks that the 14 days period spent in custody pending hearing be deducted from his sentence pursuant to Section 333 (2) of the Criminal Procedure Code. 3.The application is premised on the grounds set out in the Motion and in the Supporting Affidavit of Applicant, Zinje Jumaa Mwandama sworn on 5 June 2026. The application was opposed by the Respondent who did not file any pleadings but submitted orally at the hearing on 30 July 2026. 4.The Applicant’s case is that he was convicted by the Milimani Chief Magistrate Anti -Corruption Court in Case No. MCAC/E003/2023 on 4 Counts and sentenced to 12 months imprisonment in each Count for Counts I, III and IV, and 5 years imprisonment for Count II, with all sentences running consecutively. 5.Dissatisfied, he sought review of the sentences in the High Court whereupon his case was heard and determined on 8 October 2025 where the High Court ordered that the sentences in Counts I, II and III run concurrently and that the period of 14 days spent in custody pending hearing at the trial court be deducted from the sentence pursuant to Section 333 (2) of the Criminal Procedure Code. He however, contends that the High Court inadvertently omitted Count IV from the concurrency orders, hence the instant application. 6.At the hearing on 30 July 2026, the Applicant reiterated the above adding that the four (4) Counts arose from the same transaction and hence all sentences arising therefrom should run concurrently. He further submitted that the court should consider a non-custodial sentence for the remainder of his term arguing that he is remorseful, has since rehabilitated, is the sole bread winner, and being 55 years, he is of advanced age. He urged the court to allow his application. 7.The Respondent, represented by Miss Kemboi learned counsel, opposed the application on grounds that this court lacks jurisdiction to determine the application since the application seeks to review a ruling of a Judge of concurrent jurisdiction. It was submitted that the Applicant does not have recourse before this course and as such he should approach the Court of Appeal for review. The court was urged to dismiss the application. 8.I have considered the application, the supporting affidavit and rival submissions by the parties. The single issue for determination is whether this court has jurisdiction to review the decision on the sentence made by a Judge of concurrent Jurisdiction. 9.The applicant avers that the initial sentence passed by the trial court was reviewed on appeal by the High Court where the sentences in Count I, II and III were ordered to run concurrently with the omission of Count IV which he now seeks to review. He has also prayed for commutation of the remainder of the sentence from custodial to non-custodial on such terms as may be deemed appropriate. 10.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.” 11.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 or concurrent 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. 12.The Application for revision is made under Section 362 and 364 of the Criminal Procedure Code. Section 362 empowers the High Court to call for and examine records of any subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any finding, order or sentence made or passed by any such subordinate court. That power is limited to subordinate courts and does not extend to the decision of a High Court. 13.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. 14.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 a judge of concurrent jurisdiction, as doing so would undermine judicial consistency and certainty. 15.In the circumstances, this matter having been determined by the High Court being a court of equal status and concurrent jurisdiction, this court lacks jurisdiction to entertain the application before it. 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 from decisions of the High Court in the Court of Appeal. 16.Accordingly, I find the Notice of Motion dated 5 June 2026 devoid of merit and is hereby dismissed. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31ST DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE