Marvin Patrick Muigai v Republic

The Law 5. 6. 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. 7. Section 364(1) of the Criminal Procedure Code provides: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”- (2) 8. 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. The revisionary jurisdiction of the High Court was discussed by Odunga J in a persuasive decision of Joseph Nduvi Mbuvi vs Republic [2019] eKLR:“ In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.” 9. Similarly Nyakundi J in Prosecutor vs Stephen Lesinko [2018] eKLR outlined the principles which will guide a court when examining the issues pertaining to section 362 of the Criminal Procedure Code as follows:a. Where the decision is grossly erroneous; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3822/eng@2026-03-19 2

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b. Where there is no compliance with the provisions of the law; c. Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; d. Where the material evidence on the parties is not considered; and e. Where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence. 10. The above provisions convey jurisdiction to this court to exercise revisionary powers in respect of orders of the subordinate courts. This court is therefore possessed of the requisite jurisdiction to hear and determine this application. 11. The applicant was arrested on 22nd December 2025 and charged with the offence of creating disturbance in a manner likely to cause a breach of the peace contrary to Section 95(1)(b) of the Penal Code to which he pleaded guilty and was sentenced to six months imprisonment. During mitigation, the applicant apologized for his actions and asked for a fair sentence. The trial court sentenced the applicant to six months imprisonment. 12. Section 95 of the Penal Code provides:Any person whoa. Uses obscene, abusive or insulting language, to his employer or to any person placed in authority over him by his employer in such a manner as is likely to cause a breach of the peace; or b. Brawls or in any other manner creates disturbance in such a manner is likely to cause a breach of the peace, Is guilty of a misdemeanour and is liable to imprisonment for six months. 13. It is noted that the sentence imposed by the learned magistrate is the one provided under Section 95 of the Penal Code as the maximum sentence. I have further perused the proceedings and noted that the applicant was a first offender and has served approximately three months in prison. The record also shows that the complainant, his mother has accepted his apology for the wrong that affected her as the victim. Given the circumstances of the case, it is my considered view that the sentence meted upon the applicant was harsh and excessive given the fact that the applicant was a first offender. The court ought to have considered the said factor and not given him a maximum sentence. 14. The applicant has served three (3) months imprisonment since he was sentenced on 24/12/2025 which period is sufficient in my view. 15. The applicant is therefor released forthwith unless otherwise lawfully held. 16. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 19TH DAY OF MARCH 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3822/eng@2026-03-19 3

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