Joshua Kinama Kithama v Republic

5. 6. 7. c. That the learned trial magistrate erred in law and fact by failing to note that the recovered exhibits differed. d. That the learned trial magistrate erred in law and fact when he failed to note that the particulars in the charge sheet were defective. e. That the learned trial magistrate erred in law and fact when he failed to note that the appellant was not taken for medical examination. a. That the learned trial magistrate erred in law and fact by hurrying up the prosecution case. b. That the learned trial magistrate erred in law and fact in declining to attach any weight to the defence and shifting the burden of proof to the appellant. c. That the learned trial magistrate erred in law and fact b failing to note that the medical examination tendered created doubts. By a judgment delivered on 3rd May 2019 the court Hon C .Kariuki J concluded by saying 1. The appeal has no merit and is hereby dismissed. 2. The conviction is affirmed and sentence confirmed. The applicant has now filed this revision citing numerous articles of the Constitution 259(5) (b)(i)(ii) (c) (8) and 22(1) 23(3) 27(1) 33,35, 48,159, 165(3)(B), 258(1) : the Judiciary Sentencing Policy guidelines. He seeks; 1. That the application be admitted for bearing on a priority basis 2. That, this Hon. court be pleased to make an order for this application to be beard and determined. 3. That this Hon, court be pleased to make an order to hear this application and award priority basis in the 1st instant. 4. That this Hon, court be pleased to invoke Sec.333 (2) of the C.PCA.R.W. Article 259(5) (b) (i)(ii)(c)(8)of the constitution of Kenya. The application is supported by his own affidavit where he depones; 1. That, I was arrested and charged with the offence of defilement after fall trial. I was found guilty and convicted and sentence to serve 20 years in jail dated on 17th /3/2018 before Hon E Mwiru 2. That being dissatisfied by the decision I lodged on appeal vide Cr appeal no 53/2018, which was dismissed by Karuki (J) at Makueni 3. That, the applicant does not wish to exercise my right of 2nd appeal, but rather wants to pursue with an application of period spend in custody, which was not discounted during the original of sentencing. 4. That, I was arrested on the 3/1/2018 5. That, I have spent at about at about 3 month in remand custody https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6435/eng@2026-04-24 2

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6. That, the applicant feels that he was not accorded a fair sentence in the trial court as it did not take into take into account period spent in custody. 7. That, may thus Hon court be pleased to review the sentence meted of 20 year as it manifestly too harsh excessive, and disproportionate sentence. 8. That thus Hon court be pleased to invoke section 333(2) of the CPC for the period, which I was in remand custody amount to 3 month be taken into account. 9. That thus Hon court be pleased to find violation of article 47 and 48 of the C.O.K. 8. From the foregoing the issue is whether this court has the jurisdiction to hear and determine this application. 9. It is noted that the applicant concedes having filed and appeal which was heard by this court- Hon C. Kariuki J. The Judge upheld both the conviction and the sentence of the subordinate court. That means that this court confirmed the sentence as it was given by the trial court. It is also evident that the issue of this sentence was not raised on appeal. 10. Article 165 of the Constitution empowers this court with supervisory powers over subordinate courts and tribunals” 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. 11. The judge who heard and determined the appeal is a judge of this same court. 12. Applicant invokes Article 165(3) (b) of the Constitution to the effect that this court has (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; 13. He urges the court to read s. 333(2) with Article 259 on the computation of time. However, s. 333(2) of the Criminal Procedure Code speaks for itself. 14. More importantly this court cannot confer jurisdiction upon itself to review the judgment of another Judge. 15. The applicant’s right of review is anchored at article 50(2) (q) of the Constitution (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law 16. The applicant exercised his right of appeal to this court from the subordinate court. His right of review of the orders of this court lies with the court higher than this one, the Court of Appeal. 17. There is no Constitutional issue for determination. What is for determination is an issue of review, and I the Constitution itself does not confer that jurisdiction to this court. 18. In the circumstances the application is declined for want of jurisdiction and the file is closed. RULING DATED, SIGNED AND DELIVERED VIA CTS ON 24TH APRIL 2026. MUMBUA T MATHEKA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6435/eng@2026-04-24 3

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JUDGE SIGNED BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6435/eng@2026-04-24 4

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