Njagi v Republic (Miscellaneous Criminal Application E020 of 2025) [2025] KEHC 19478 (KLR) (16 July 2025) (Ruling) Neutral citation: [2025] KEHC 19478 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT GARISSA MISCELLANEOUS CRIMINAL APPLICATION E020 OF 2025 JN ONYIEGO, J JULY 16, 2025 BETWEEN HUMPHREY GITONGA NJAGI ........................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant herein was charged with the ofience of defilement contrary to Section 8(1) as read with Section 8(2) of the sexual offences Act. Particulars were that on 3rd day of December 2018, at [Particulars Withheld] within Garissa Township, he unlawfully and intentionally caused his penis to penetrate the vagina of PW a child aged 5 years. 2. Having denied the charge, a plea of not guilty was entered and the case proceeded to full hearing. Consequently, he was convicted and sentenced to life imprisonment. Subsequently, he lodged an appeal vide criminal appeal No. 44 of 2021 Garissa high court. Upon considering the appeal, the court substituted the conviction on the main count to the alternative count thus culminating the substitution of sentence from life imprisonment to 7 years. 3. Undeterred, he has now moved to this court via an undated notice of motion seeking review of the sentence. He urged the court to consider placing him on probation to serve the remaining period. He contended that he has since reformed and acquired skills which he can utilize while outside prison. 4. In response, the prosecution opposed the application on grounds that the court is functus oficio as the applicant has already benefited from the reduction of sentence from life imprisonment to 7 years. 5. I have considered the application herein and the response thereof. The law governing revision in a criminal case is section 362 and 364 of the CPC. Section 362 and 364 provides as follows; “ 362. Power of High Court to call for records https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19478/eng@2025-07-16 1
page 1 of 3
The High Court may 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. 364. Powers of High Court on revision (1) (2) 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 its knowledge, the High Court may — (a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; (b) in the case of any other order other than an order of acquittal, alter or reverse the order. (c) in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Traficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review. 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: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the ofience concerned. 3. Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the ofience which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19478/eng@2025-07-16 2
page 2 of 3
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. (5) 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. 6. It is clear from the above provisions that an application for review of sentence can be entertained only for purposes of the court satisfying itself as to the correctness, legality or propriety of the proceedings. Section 364(5) of the CPC is emphatic that no application for revision should be entertained where an appeal lies from a sentence or order. This position was espoused in Criminal Revision number 194 of 2023 Kisii High court in the case of Barongo Sianyo Atembe vs Republic. 7. From the record, the court is merely being asked to exercise mercy on the applicant. The court has already pronounced itself on the aspect of sentence during the appeal. I do not see any justification to warrant my intervention. Simply put, the court is functus oficio. 8. For the above reason stated, it is my finding that the application is devoid of merit and the same is dismissed. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 16TH DAY OF JULY 2025 ........................ J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19478/eng@2025-07-16 3
page 3 of 3