Mule v Republic (Criminal Revision E117 of 2024) [2026] KEHC 12287 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 12287 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CRIMINAL REVISION E117 OF 2024 BM MUSYOKI, J JULY 29, 2026 BETWEEN TOM SAFARI ALIAS SIMON MUTUKU MULE ................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for revision of sentences in Mavoko Chief Magistrate’s Court criminal cases numbers E184 of 2024 and E739 of 2023) RULING 1. The applicant and another were charged with stealing contrary to Section 268(1) as read with Section 275 of the Penal Code in Mavoko Chief Magistrate’s court criminal case number E739 of 2023. They were tried and convicted of the ofience and on 15-04-2024 sentenced to a fine of Kshs 30,000.00 or in default serve six months in jail. 2. While the above matter was ongoing, the applicant was charged before the same court with burglary contrary to Section 304 and stealing contrary to Section 268(1) as read with section 275 of the Penal Code with and an alternative charge of handling stolen goods contrary to Section 322(1)(2) of the Penal Code. He pleaded guilty to the main count on 19-02-2024 and on 20-02-2024 the court sentenced him to five years in jail. 3. The applicant did not prefer appeal against either the conviction or sentence. Instead, he has approached this court through an application by way of chamber summons dated 7th August 2024 praying that this court reduces the sentences on grounds that he is remorseful, has reformed after rehabilitation and the court should have mercy on him. 4. The application is opposed through grounds of opposition dated 28th October 2024 in which the respondent avers that the orders are incapable of being granted, the application is misconceived and bad in law as the court cannot review a lawful sentence, this court lacks jurisdiction to hear and determine https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12287/eng@2026-07-29 1
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the application and that the application is vexatious, misleading and an abuse of the process of the court. 5. I have read and carefully considered the submissions of the applicant which are not dated but forwarded to the court from the prison on 11-11-2025 and those of the respondent dated 30th October 2025. The power of this court to review sentence of subordinate courts is drawn from Section 362 of the Criminal Procedure Code which states 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.’ 6. The respondent has argued that this court does not have jurisdiction to entertain this matter as Section 364(5) of the Criminal Procedure Code does not allow any revision against an order that can be appealed. The Section provides that; ‘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.’ 7. I do not agree with this line of submissions. Exercise of powers of revision applies on grounds of illegality, irregularity, impropriety and correctness of the decision or record. The law would abhor a situation where an illegality or impropriety would be let to stand by lack of appeal by the parties. In Republic v Mutungei [2017] KEHC 7170 (KLR), Honourable Justice R. Nyakundi held that; ‘As can be seen from this analysis the function of the court under section 362 of the Criminal Procedure Code as read with section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning. It can be deduced from this evaluation that the jurisdiction on revision will be invoked where there is a decision by a subordinate court, the decision is not subject of appeal, the grounds of revision must exist against the decision being challenged from the subordinate court.’ 8. Coming to the merits of the application, I am not satisfied that the applicant has met the threshold for revision. All that he has told the court is that he is remorseful and has reformed. The issue of remorsefulness and the fact that he had pleaded guilty in the second case were considered by the trial courts when they were passing the sentences. I would find it material to observe that the applicant committed the second ofience when he was still facing a similar charge in the first case which to me was an aggravating factor. 9. The applicant has not pointed this court to any element of illegality, unlawfulness, irregularity or impropriety in the sentences meted on him. The sentences passed by the trial courts were within the law. The maximum punishment provided for stealing is three years imprisonment while that of burglary and stealing attracts a maximum sentence of ten years imprisonment. The applicant was sentenced to six months in the first case and five years in the second count. I see no reason for reducing the sentences. In any case, the sentence in the first case has already been served and reducing the same would serve no purpose. 10. The application has no merit and is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12287/eng@2026-07-29 2
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DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. Judgment delivered in absence of the parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12287/eng@2026-07-29 3
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