Josphat Mburu Waithera v Republic

5. The respondent states that the applicant has not argued or suggested that the sentence is manifestly harsh and excessive, or its illegal or improper, or that the court acted on the wrong principle or took into account irrelevant factors in sentencing or that the proceedings were irregular or in violation of his right in fundamental freedom. The sentence passed by this Honourable Court was proper and legal as it considered the aggravating and mitigating circumstances. 6. The respondent states that time spent in custody was also factored in when passing the sentence in accordance with Section 333(2) of the Criminal Procedure Code. The respondent further states that the applicant can pursue the issue of sentence at the Court of Appeal. The Law. 7. 8. The High Court’s power of revision is set out in Article 165 (6) and (7) which provides:(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 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. Section 362 of the Criminal Procedure Code provides:The High Court may call 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. 9. Section 364(1) of the Criminal Procedure Code provides:(1) (2) 10. a. in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence; b. In the case of any other order other than an order of acquittal alter or reverse the order. 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. Article 50 of the Constitution provides:(2) Every accused person has the right to a fair trial, which includes the right:(q) 11. 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 his knowledge, the High Court may- If convicted, to appeal to, or apply for review by a higher court as prescribed by law. As provided above, the High Court can only undertake criminal revision of the decisions of a subordinate court and not of a superior court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17320/eng@2025-11-20 2

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12. In Daniel Otieno Oracha v Republic (2019) eKLR, the petitioner had applied for review of a sentence imposed by a court of concurrent jurisdiction. The court held:The law abhors that practice of a Judge sitting to review a judgment or decision of another Judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise. The judgment of Abida Ali-Aroni J. made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone. Good governance demands that cases be handled procedurally in the right forum. This is because the rule of thumb 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 and that matter falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court….. 13. In the instant matter the applicant was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code vide Criminal Case No. E003 of 2023 before this court. The applicant entered into a plea bargain agreement with the respondent and pleaded guilty to the offence of manslaughter. On 28th November 2024, this court sentenced the applicant to serve thirteen years imprisonment to commence from the date of arrest, the 5th June 2019. Thus, the court took into consideration the time spent by the applicant in custody pursuant to Section 333(2) of the Criminal Procedure Code. Thus, any further recourse for further reduction of the applicant’s sentence lies in the Court of Appeal. 14. I therefore, find that this court lacks jurisdiction to review its own orders in this criminal case. The application for review, is in my view, misconceived and incompetent. 15. The application is hereby struck out with no orders as to costs. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 20TH DAY OF NOVEMBER 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17320/eng@2025-11-20 3

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