1.The applicant herein was charged with the offence defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The trial court convicted and sentenced him to serve 15 years’ imprisonment. His appeal against the conviction and sentence was dismissed by this court, differently constituted.
2.The applicant now seeks order for review of the sentence of 15 years’ imprisonment imposed by the trial court and upheld by this court, on appeal.
3.At the hearing of the Application, the applicant sought leniency from the Court and asked for a reduction of the sentence.
4.Mr Mwangi, learned Counsel for the respondent opposed the Application terming it as premature since the applicant had so far served only 5 years out of the 15 years prison sentence. He urged the Court to dismiss the Application.
Analysis and Determination
5.Article 50 of the Constitution of Kenya provides for the rights of an accused person as follows: -(2)Every accused person has the right to a fair trial, which included the right-(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law. (emphasis mine)
6.This Court’s powers to review sentences are premised on Article 165 of the Constitution and section 362 of the Criminal procedure Code which provide as follows: -Article 1651.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.Criminal Procedure Code362.Power of the High Court to Call for RecordsThe 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. (Emphasis mine)
7.Section 364 of the Criminal Procedure Code outlines the powers of the High Court under article 165 of the Constitution and section 362 of the Criminal Procedure Code and states how the powers are to be exercised as follows: -364.Powers of the High Court on Revision1.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.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 that 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 a 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.
8.From the above provision, it is clear that the powers of the High Court on Revision are to be exercised only over subordinate courts and not over the High Court with respect to its own decisions. Furthermore, it is trite that where an accused person is aggrieved by the court’s decision, he may either appeal or seek a review of the sentence. In this regard a convicted person cannot appeal and at the same time seek a review.
9.The question that arises therefore is whether this Court has jurisdiction to entertain the present Application.
11.I note that neither article 165 of the Constitution nor the Criminal Procedure Code grants this Court the jurisdiction to review its own decisions. It was not disputed that the applicant herein already filed an appeal before this Court which appeal was unsuccessful. It thus follows that this Court cannot once again entertain an Application for revision of sentence with respect to the same matter. I am guided by the decision of Justice Joel Ngugi (as he then was) in John Kagunda Kariuki vs Republic  eKLR where the Learned Judge held thus:-
13.In sum, I find that this Application lacks merit and I therefore dismiss it.