Kilinga v Republic (Criminal Revision E222 of 2024) [2026] KEHC 13068 (KLR) (21 August 2026) (Ruling) Neutral citation: [2026] KEHC 13068 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL REVISION E222 OF 2024 JN ONYIEGO, J AUGUST 21, 2026 BETWEEN TITUS MUINDI KILINGA ..................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an Application Against Revision of Sentence delivered by J.D. Karani (RM) on 11-12-2018 in S.O. 30 of 2017 Makindu Law Courts) RULING 1. The Applicant herein was charged with the ofience of Defilement Contrary to Section 8(1) as read out with Section 8(3) of the Sexual Offences Act No.3 of 2006. Particulars are that on 28-6-2017 he intentionally and unlawfully caused his penis to penetrate the vagina of one MPM a girl aged 10 years. 2. Having denied the charge, the case proceeded to full trial. He was finally convicted and sentenced to 40 years’ imprisonment. Aggrieved by the said sentence, he appealed vide Criminal Appeal Number 8 of 2019 whereby the conviction was upheld but sentence substituted with 20 years. 3. Subsequently, he has now moved to this court vide a Notice of Motion dated 7-8-2024 seeking review of sentence on grounds that he has undergone rehabilitation and therefore reformed; his health is not good and that he be allowed to serve the remainder of the sentence under probation. 4. In response, prosecution opposed the application urging that the sentence imposed is legal and that the court is functus oficio. 5. I have considered the application herein and the oral submissions by both parties. The main issue for determination is whether this Honourable Court has jurisdiction to determine the application herein and issue the orders sought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13068/eng@2026-08-21 1
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6. The law governing revision in a criminal case is captured under Section 362 and 364 of the Criminal Procedure Code which provides as follows; “ 362. Power of High Court to call for Records 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. 364. Powers of High Court on Revision (1) (2) 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. 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 ofience concerned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13068/eng@2026-08-21 2
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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 ofience 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. 7. It is clear from the above provisions that an application for review of sentence can be entertained only for purposes of the court satisfying itself as to the correctness, legality or propriety of the proceedings. Section 364(5) of the Criminal Procedure Code is emphatic that no application for revision should be entertained where an appeal lies from a sentence or order. This position was espoused in Criminal Revision Number 194 of 2023 Kisii High Court in the case of Barongo Sianyo Atembe vs Republic. 8. In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence to the period served or substitute the sentence with probation period. It is trite that sentencing is at the discretion of the court. An Appellate Court can only interfere if the same is illegal, excessive or imposed after taking into account wrong legal principles or taking into account irrelevant factors. See Gacheru v Republic (Criminal Appeal 188 of 2000) (2021)KECA 94(KLR)(20 February 2002)(Judgment). 9. There is no doubt that this court has already pronounced itself on the issue of sentence. In fact, he is lucky that he is serving a lesser sentence than the minimum provided under the ofience he was charged and convicted which is life imprisonment. 10. This court therefore, has no discretionary powers to impose any other sentence other than the minimum provided under the law. In that regard, I am guided by the Supreme Court decision in Republic v Joshua Gichuki Mwangi Case (2024) (KLR) where the Court held that, courts have no discretion when dealing with ofiences where minimum sentence is provided for. 11. In view of the above finding, am of the holding that the application has no merit hence dismissed. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 21ST DAY OF AUGUST 2026 ……………………………….. J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13068/eng@2026-08-21 3
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