Jmm v Republic

appellate jurisdiction; that a revision application cannot be used to act as a second appeal to this court; that once this court had confirmed the sentence, it became functus officio. 6. I have considered the application and the rival submissions made by the applicant in person and the prosecution counsel. I have also called for and perused the file in HCRA NO.55 of 2019 and the lower court record in Kangema S/O No. 26 of 2017. 7. My perusal of the lower court record reveals that the applicant was tried and convicted of the offence of incest Contrary to Section 20(1) of the Sexual Offences Act, and not the offence of defilement as stated in his application. The record also confirms that he was sentenced to life imprisonment. 8. The record in HCCRA NO. 55 of 2019 confirms that the appeal related to the applicant’s conviction and sentence in S/O No.26 of 2017. This aligns with the averments of the applicant in his application and supporting affidavit. The record also confirms that the appeal was determined by Wakiaga J on 14th December 2022 and the same was dismissed in its entirety. In effect therefore, the court upheld the sentence imposed by the trial court. 9. In the instant application, the applicant requests this court to revise the sentence that was upheld by this court in HCRA No.55 of 2019. It is trite as can be ascertained from Section 362 of the Criminal Procedure Code (CPC) that the revisional jurisdiction of this court can only be exercised over decisions, orders or sentences passed by subordinate courts and not superior courts. 10. To buttress this point, the Constitution of Kenya under Article 165(6) leaves no doubt that this court’s supervisory jurisdiction which includes its revisional jurisdiction can only be exercised over any person, subordinate courts or body or authority exercising a judicial or quasi-judicial function but not over a superior court which includes the High Court. 11. Given the foregoing, I am in full agreement with the submissions made by the learned prosecution counsel that this court lacks jurisdiction to hear and determine the instant application considering that the sentence sought to be revised was upheld by this court in the exercise of its appellate jurisdiction. Once the court pronounced itself on the sentence imposed on the applicant, it was barred from revisiting it since it became functus officio 12. What the applicant was basically asking this court to do was to sit on appeal over a decision made by Wakiaga J when determining his appeal against sentence. Since the applicant was obviously aggrieved by Hon. Wakiaga J’s decision, he should have filed a second appeal to the Court of Appeal instead of filing the instant application. 13. For all the above reasons, I am satisfied that the instant application is incompetent for want of jurisdiction and it is hereby struck out. This file is now ordered closed. It is so ordered. DATED, SIGNED AND DELIVERED AT MURANGA THIS 27TH DAY OF NOVEMBER 2025. HON. C. W. GITHUA JUDGE 27.11.2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17473/eng@2025-11-27 2

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