Mukongolo v Republic (Miscellaneous Criminal Application E178 of 2024) [2026] KEHC 714 (KLR) (27 January 2026) (Ruling)
Neutral citation:
[2026] KEHC 714 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E178 of 2024
AC Bett, J
January 27, 2026
Between
Shaban Wamukoya Mukongolo
Applicant
and
Republic
Respondent
Ruling
1.The Applicant and his co-accused were both convicted for two counts of the offence of robbery with violence contrary to Section 296(2) of the Penal Code after a trial in Mumias Criminal Case No. 997 of 2019. He was sentenced to serve 30 years' imprisonment on each count.
2.Aggrieved with the conviction and sentence, the Applicant and his co-Accused lodged a petition of appeal vide Kakamega HCCRA No. 145 of 2018. In a judgement delivered by Njagi J. on 18th September 2019, the court dismissed the Applicant’s appeal against conviction but substituted the initial sentence with reduced sentences of 18 years on each of the two counts.
3.By an undated Notice of Motion, the Applicant now urges the court to invoke Section 333(2) of the Penal Code and factor in the time he spent in custody while awaiting trial, which he says was from 3rd October 2017 to 11th October 2018, which amounts to one year and eight days in his sentence. He argues that this court has jurisdiction by virtue of Article 163(b)(sic) of the Constitution to hear and determine his application. The Respondent is not opposed to the application.
4.Article 165(6) and (7) of the Constitution empowers the High Court to invoke its supervisory jurisdiction over subordinate courts. It imposes a duty on the court to call for the record of the subordinate court and to review and, if necessary, order or issue a review to ensure the fair administration of justice. It does not envisage a scenario in which the High Court reviews its own orders or the orders of a court of concurrent jurisdiction. The Applicant can therefore not rely on Article 165(6) and (7) of the Constitution to fortify his application.
5.Be that as it may, it is trite law that the court has the power to recall and review its own orders if the review is in the interest of justice. These powers extend to correcting any errors apparent on the face of the record or making orders for any other sufficient reason necessary for the ends of justice. The power does not extend to issues that should be appealed against, however, as the court cannot sit on appeal of its own judgement.
6.Section 333(2) of the Criminal Procedure Code provides:-
7.It is well settled that jurisdiction is the pivotal power of the court. Without jurisdiction, the court has no authority to make any determination of a matter placed before it. Whereas this court has jurisdiction to review a sentence pursuant to Section 333(2) of the Penal Code, the same can only be done if it is demonstrated that the trial court did not apply the sentence as required by law.
8.It is clear from the record that, in reducing the sentence, Njagi J. reiterated that sentencing is a matter of trial court’s discretion and noted that Section 333(2) of the Criminal Procedure Code requires a court to take into account the time spent in custody when sentencing. He then considered the mitigating and aggravating circumstances of the offence and concluded that 18 years was the most appropriate sentence. It is evident that, in considering the appeal against the sentence, the learned appellate judge was alive to the mandatory provisions of Section 333(2) of the Criminal Procedure Code and had them in mind throughout the determination of the appeal to the point he reduced the sentence. The reduced sentence was therefore arrived at after the court had taken into consideration the time the Applicant had spent in custody during the trial, and, in its discretion, ordered that the reduced term commence from the date of the sentence by the trial court.
9.The application now seeks a review of the orders of a court of Njagi J. based on Section 333 (2) of the Criminal Procedure Code which we reiterate, was considered by the trial judge when he reduced the Applicant’s sentence. This invites the court to review the orders of a peer court, which is not tenable. If the Applicant was of the view that the appellate court failed to credit the time spent in custody to his sentence, then his only recourse was to file an appeal, for it is well settled that the High Court does not have jurisdiction to review decisions of a court of concurrent jurisdiction.
10.In Daniel Otieno Oracha v Republic [2019] KEHC 6242 (KLR), Aburili J. considered a similar application and rendered herself thus:-
11.The law dictates that there be order in the manner the court handles its matters. Allowing applications that would amount to the court sitting on appeal against its own decisions or those of courts of concurrent jurisdiction would be inimical to the administration of justice and a breach of the Constitution, which does not empower the High Court to supervise itself. The learned judge determined the appeal and applied the provisions of Section 333(2) of the Criminal Procedure Code to the reduced sentence. But even if he had not done so, his decision is sacred insofar as this court is concerned. The only court that can revisit the decision is the Court of Appeal.
12.Consequently, for the above reasons, the court finds that the application lacks merit and it is hereby dismissed.
DATED, SIGNED, AND DELIVERED AT KAKAMEGA, THIS 27TH DAY OF JANUARY 2026.A. C. BETTJUDGEIn the presence of:Applicant present in personMs. Chala for the Respondent/StateCourt Assistant: Polycap