Kitondo v Republic & another (Civil Miscellaneous E051 of 2024) [2025] KEHC 19493 (KLR) (28 October 2025) (Ruling) Neutral citation: [2025] KEHC 19493 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CIVIL MISCELLANEOUS E051 OF 2024 LW GITARI, J OCTOBER 28, 2025 BETWEEN ODUSO KITONDO ................................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT AND NELLY MUTHINI PAUL ............................................................................. ACCUSED RULING 1. The applicant filed the application before this court seeking orders that the court be pleased to order the release of betting machines produced as exhibits in the case to the applicant unconditionally. 2. It is based on the grounds that the court be pleased to grant leave and allow the application out of time. That the accused was convicted and sentenced on her own plea of guilty. That the court ordered the forfeiture of exhibits if no cause is shown within 14 days why they should not be forfeited. 3. That the applicant of the said machines (sic) was waiting issuance of license from the Betting Control and License Board and had not authorized the operation of the machines at the time the accused was arrested. That the accused paid the fine and was released. 4. That the applicant was at no time party to any illegal activity such the one accused person was convicted. That the applicant had invested in the machines and depended on them for his livelihood. That he is likely to suffer irreparably if the orders are not granted. 5. I have considered the application. It is a miscellaneous application by the applicant Oduso Kitondo who was not a party in the Lower Court. The Criminal Procedure Code provides that a matter which has been dealt with in the sub-ordinate should come to the High Court by way of Revision or by way or Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19493/eng@2025-10-28 1
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Appeal 6. Section 347(1) of the Criminal Procedure Code provides: “ Save an in this pant provided a. A person convicted on a trial held by a sub-ordinate court; and b. An appeal to the High Court may be on a matter of facts as well as on a matter of law. That a panty who is dissatisfied by an Order or Judgement of a sub-ordinate court may file an Appeal to the High Court. Revision 7. This provided to under Section 362 of the Criminal Procedure Code Cap 75 Laws of Kenya which provides that the court may call for the record of the sub-ordinate court for the propose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order recoded or passed and as to the regularity of any proceedings. 8. Thus, a party may move the high court for revision, if it aggrieved by any order issued by the subordinate court. Supervisory Jurisdiction 9. This is donated to the High Court by Article 165 (6) of the Constitution which provides: The high court has supervisory jurisdiction over the sub-ordinate courts and over any person exercising a judicial or quasi- judicial function but not over a Superior Court. 10. Under Sub-article (7) the High Court may call for the record of any proceeding before a sub-ordinate court and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. 11. The above provisions may down the matters that may be handled by the High Court from the subordinate court, the nature of the claims and the basis upon which such matter may be filed. The applicant has filed a Miscellaneous application by a person who was not a party in the sub-ordinate court. The application was brought out of time and no leave had been granted to file the application or the appeal. A party wishing to appeal out of time must first of all seek leave and obtained the leave from the court where the appeal is intended to be filed. Section 349 of the Criminal Procedure Code provides that the appeal should be filed within 14 days. The proviso to the Section gives court discretion to allow the appeal to be filed out of time provided that the court so applying has shown good cause for failure to file the appeal within 14 days. 12. The applicant did not seek leave and obtain such leave to appeal out of time. Furthermore, what is before this court is a Notice of Motion seeking order that the court orders the release of the machines produced as exhibits in the Lower Court. This court lacks jurisdiction to deal with such an application. The matter should have been filed as a revision or an appeal. The fact that the applicant was seeking leave to appeal out of time means that what was intended was an appeal. 13. Although the applicant states that there was an order or accused to show cause why the machines should not be forfeited, I have perused the record and no such order appears on the record of the subordinate court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19493/eng@2025-10-28 2
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14. In concluding I find that the application is misconceived as it based on a none existent order and is not seeking review nor is it an appeal. The application is not properly before this court and is dismissed. DATED, SIGNED AND DELIVERED AT KITUI THIS 28TH DAY OF OCTOBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19493/eng@2025-10-28 3
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