Catherine Wambui Magondu v Republic

6. That the honourable court, being the custodian of children right do order for a report from the children department at Kerugoya as part of its consideration for a non-custodial sentence. 7. That the court considered the applicant’s application dated 13th June 2025 in the main file and granted payers 2, 3 and 4 herein, of which the prayer 2 and 4 have been complied with and the said reports should be applied in this application. 3. The application is supported by the affidavit of the applicant sworn on 23/7/2025. The applicant contends that she was charged with the offence of murder which was reduced to manslaughter. She was sentenced to serve twelve (12) years imprisonment and is currently serving the sentence at Embu Women G.K Prison. 4. Her contention is that having read the pre-sentence report and the mitigation by her advocate the court erroneously failed to adequately to consider her dependant minor children her lack of prior intention or premeditation and her emotional or psychological state at the time of the offence. 5. That she is remorseful and ready to take any directions by this court on a none custodial sentence of which she will be able to take care of her minor children who are at the verge of being rendered destitute. That she is a first offender and law abiding citizen. A sentence review report was filed by the probation officer. The respondent did not oppose the appeal in there submissions. 6. I have considered the application, the sentence review report and the submission. The issue that arises for determination is whether this court has jurisdiction to review its sentence. The applicant relies on Article 53(1), (d), (e) & (2) of the Constitution and Section 8(1) and (2) of the Children Act. These provisions of the Constitution are on the rights of children and the best interest of the child. They are mitigating facts when considering the sentence to be imposed on the mother or guardian of the children. The applicant has been sentenced to a term of imprisonment. 7. The issue that arises is whether this court has jurisdiction to review a sentence that it has passed. It is trite law that the jurisdiction of the court is donated by the Constitution and the statute. The jurisdiction of the High Court to review Orders and Sentence is donated y Article 165(6) & (7) of the Constitution which provides that: “ (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 not 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.” 8. The jurisdiction of the High Court to review is exercised on the decisions of the Magistrate’s Court. The jurisdiction is supervisory. Over the article does not give the High Court discretion to review its own sentence. 9. Article 165(2(a) of the Constitution provides that High Court shall have: “ unlimited original jurisdiction in Criminal and Civil matters.” What the applicant is asking this court to do is review its own sentence. The court exercised its jurisdiction in Criminal matter and it now lacks jurisdiction to revisit the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4242/eng@2026-01-23 2

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10. Review provided under Section 364 of the Criminal Procedure Code. The Section buttresses Article 165(6) & (7) when it names to review. The powers of the court on revision which is under Section 362 of the Criminal Procedure Code. The section provides as follows: “ 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.” 11. This court is supposed to satisfy itself as to whether the proceedings and the orders issued by the subordinate court are correct. The orders which the court may issue on revision are provided under Section 364 of the Criminal Procedure Code which provides as follows: “ 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-Trafficking 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. (2) 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 offence 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 offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence. (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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4242/eng@2026-01-23 3

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12. The High Court is given jurisdiction to review orders of the sub-ordinate courts and issue orders. There is no jurisdiction to review its order. The counsel for the applicant has referred court to Sentencing Guideline 7: 19 (2) (4) which refers to the consideration that the court has to make when passing sentence and whether to impose a none custodial sentence. I am of the view that the guidelines are not relevant as this court has already passed the sentence. 13. The applicant has deponed that this court erroneously failed to adequately consider her minor children. It is trite law that where the court has made an erroneous decision, the remedy open to the aggrieved is to appeal. See Section 354 of the Criminal Procedure Code. 14. Finally, the applicant is applying for a none custodial. The fact that she called for a probation officer’s report means that she prefers a sentence on probation. Sentencing is a matter of exercise of discretion of the court. Under the Probation Offender Act the maximum sentence that an offender can served on probation is three (3) years. The applicant’s application is to reduce the sentence. It is the appellate court in this case the Court of Appeal, which can consider such an application. 15. For those reasons, I find that this court lacks jurisdiction to review the sentence. All the matters raised by the applicant were considered by this court at the time of sentencing. I dismiss the application. DATED, SIGNED AND DELIVERED AT KITUI THIS 23RD DAY OF JANUARY, 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4242/eng@2026-01-23 4

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