Joseph Kimani Kariuki v Republic

d. 3. That the Applicant has served a substantial number of years in prison since he was convicted and has taken advantage of the rehabilitation programs offered in prison. The Application is supported by the annexed affidavit sworn by the Applicant herein whose averments echo the grounds of the application. Analysis and Determination 4. On perusal of the application, the main issue for determination herein is whether the applicant is entitled to review of sentence under Section 333(2) of the Criminal Procedure Code. 5. Section 333(2) of the Criminal Procedure Code provides: “ Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 6. However, I wish to take note that the Applicant herein had appealed to the High Court vide Criminal Appeal No. E052 of 2023 in which the session Judge held as follows in paragraph 60 and 61 of her decision: Application of Section 333(2) of the Criminal Procedure Code 60. I have perused the trial court’s proceedings on sentencing. In meting out the sentence, amongst that which the Hon Magistrate considered before determining the sentence in his own words is “…. the fact that the accused herein has been in remand incarceration for 10 years…” This being the case then obviously the term of 25 years’ imprisonment is inclusive of and did factor in the period of time that the appellant spent in remand custody. In this regard, Section 333(2) of the CPC is not applicable. 61. In light of the conclusions herein reached by this Court on all the Grounds of Appeal raised by the appellant, it is my finding that the appellant’s Appeal on both the conviction and sentence is devoid of merit. The said Appeal is therefore now hereby dismissed in its entirety and both the conviction and sentence upheld. 7. It is thus crystal clear that the issue of sentencing specifically the applicability of section 333(2) of the Criminal Procedure Code was readily dealt with by this Honourable Court in Criminal Appeal No E052 of 2023. It is trite law that this court cannot sit on appeal of its own ruling or judgement for it already determined the issue of sentencing in its Judgement delivered on 6th March 2025. 8. From the above, I agree with the decision in the case of Wanyonyi v Repulic (Miscellaneous Application E035 of 2021) [2023] (KLR) where the court held that: By reviewing the said decision, this court would be arrogating itself the appellate jurisdiction to entertain an appeal from its own decision or decision of a court of concurrent jurisdiction. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Good governance demands that cases be handled procedurally in the right forum. This is because the rule of the thumb is that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10850/eng@2025-07-25 2

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9. Consequently, the Application herein is devoid of merit and the same is dismissed. 10. It is so ordered. DATED, SIGNED AND DELIVERED VIA CTS AT ELDORET THIS 25TH JULY 2025 .......................... R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10850/eng@2025-07-25 3

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