REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E062 OF 2025
AS CONSOLIDATED WITH E072 AND E073 OF 2025
TYSON MUDOLA ………………….............…..…………………… 1ST APPLICANT
PATRICK SAHANI ............................................................. 2ND APPLICANT
ALEX KUYA ...................................................................... 3RD APPLICANT
VERSUS
REPUBLIC ………………………………………………………..………… RESPONDENT
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
1. Before this Court are three notices of motion individually filed by the
Applicants in Court on 6th November 2025, 18th & 30th of December 2025
notwithstanding that they originate from the consolidated judgment of the
Court in Criminal Appeal Case No. 942 of 2016 whose judgment is in the
repository of Kenya Law namely Tyson Mudola, Clinton Ngonda, Patrick
Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR). Apparently the
three notices of motion are expressed to be brought under Section 362 and
364 of the Criminal Procedure Code, Articles 22, 23, 25, 27, 28, 29, 50,
159(2)(d), 165(3)(a) and 259 of the Constitution of Kenya 2010, and all
enabling provisions of the law seeking the following Orders:
a. THAT this honourable Court be pleased to review, vary and/or reduce the
thirty (30) year sentence imposed upon the Applicants in Tyson Mudola,
& Others v Republic [2019] KEHC 8352 (KLR) to a lesser and more lenient
term of imprisonment.
Page 1 of 10
Criminal Misc. Application No.E074 of 2025
b. THAT the period already served by the Applicants while in custody be
taken into account pursuant to Section 333(2) of the Criminal Procedure
Code.
c. THAT the Honourable Court do make such other or further orders as may
be just and expedient in the circumstances.
2. Which application is founded on the following grounds;
a. THAT the Applicants were convicted and sentenced to death by the Senior
Resident Magistrate's Court at Hamisi in Criminal Case No. 942 of 2016,
which sentence was substituted with thirty (30) years' imprisonment by
the High Court at Kakamega in Tyson Mudola, Clinton Ngonda, Patrick
Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR).
b. THAT the Applicants withdrew their appeal to the Court of Appeal at
Kisumu upon the Supreme Court's clarification that the Court of Appeal
lacks jurisdiction to review or alter sentences, as sentencing is a matter of
fact and not law.
c. THAT this honourable Court is therefore properly seized of jurisdiction
under Articles165(3)(a) and 50(6) of the Constitution, and Sections 362
and 364 of the Criminal Procedure Code, to review the propriety and
fairness of the sentence imposed.
d. THAT the Applicants have undergone extensive rehabilitation while in
custody, as evidenced by theological and correctional certificates earned
during their imprisonment, demonstrating genuine reformation and
reintegration potential.
e. THAT their current Earliest Possible Date of Discharge (E.P.D.) is 21st
March 2038, a period of thirteen (13) years away, which is manifestly long
and disproportionate when considered alongside their demonstrated
rehabilitation.
f. THAT the sentence of thirty (30) years is manifestly excessive and contrary
to the evolving jurisprudence on proportionality, human dignity and the
rehabilitative purpose of sentencing.
Page 2 of 10
Criminal Misc. Application No.E074 of 2025
g. THAT the Court in Ali Abdalla Mwanza v Republic [2018] eKLR recognized
that, where a term sentence exceeds the national life expectancy
(approximately 67 years), it is manifestly excessive, and reduction is
warranted to ensure that punishment does not amount to a life sentence
by default.
h. THAT in Vinter and Others v United Kingdom (Applications Nos.
66069/09, 130/10 and 3896/10), the European Court of Human Rights
emphasized that continued detention must remain justifiable throughout
the sentence and should be subject to review in light of changing
circumstances and the rehabilitative progress of the prisoner.
i. THAT the Applicants continued incarceration without the possibility of
early review or re-sentencing offends the principles of human dignity, fair
trial, proportionality, and progressive realization of human rights under
the Constitution and international human rights instruments to which
Kenya is a party.
j. THAT it is in the interest of justice, equity, and humanity that this
honourable Court reviews and reduces the sentence to a term that reflects
rehabilitation, deterrence, and reformation rather than retribution.
3. In support of the application are the affidavits sworn individually by the
Applicants but with identical averments, thus:
a. That we are` the Applicants herein, convicted and sentenced in Hamisi
Senior Resident Magistrate's Court Criminal Case No. 942 of 2016 for the
offence of robbery with violence and related counts, hence competent to
swear their affidavit.
b. THAT upon appeal, the High Court at Kakamega in Tyson Mudola, Clinton
Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR)
upheld my conviction but substituted the death sentence with a term of
thirty (30) years imprisonment.
c. THAT being dissatisfied with the length of the sentence, we initially lodged
an appeal to the Court of Appeal at Kisumu but later withdrew it after
Page 3 of 10
Criminal Misc. Application No.E074 of 2025
recent jurisprudence clarified that the Court of Appeal lacks jurisdiction
to interfere with sentences since such matters are issues of fact, not law.
d. THAT we therefore bring this application before this Honourable Court at
Vihiga under its review jurisdiction conferred by Articles 50(2)(q) and
165(3)(a) of the Constitution.
e. THAT we have now served a substantial portion of the sentence and our
Earliest Possible Date of Discharge (E.P.D.) is 21st March 2038, which is
thirteen (13) years away, a period that remains disproportionately long in
view of my demonstrated rehabilitation and positive conduct in custody.
f. THAT during our incarceration, we have transformed through
rehabilitation and education and have attained theological and moral
development certificates, copies of which shall be adduced at the hearing
herein.
g. THAT we have actively participated in prison ministry, mentorship and
reformation programs aimed at moral rebuilding, conflict resolution and
peaceful coexistence, and we now live a life founded on humility, discipline
and repentance.
h. THAT we humbly urge this honourable Court to consider the decision in
Ali Abdalla Mwanza v Republic [2018] eKLR, where the Court held that
long-term sentences exceeding the national life expectancy of about 67
years are manifestly excessive and ought to be reduced to reflect the
rehabilitative purpose of punishment.
i. THAT similarly, in Vinter and Others v the United Kingdom (Applications
Nos. 66069/09,130/10 and 3896/10), the European Court of Human
Rights emphasized that the justification for continued detention must be
periodically reviewable in light of a prisoner's rehabilitation and changing
circumstances.
j. THAT this application is therefore made not to contest conviction, but to
invite this honourable Court to exercise its discretionary power of mercy,
fairness and proportionality by reviewing the 30-year sentence to a lesser
term consistent with the principles of justice and human dignity.
Page 4 of 10
Criminal Misc. Application No.E074 of 2025
k. THAT the continued incarceration for the remaining thirteen (13) years
serves no meaningful rehabilitative purpose and instead imposes undue
hardship, contrary to Articles 27, 28, 29(f) and 50(2)(p) of the Constitution,
which guarantee equality, human dignity, freedom from cruel treatment,
and the right to a fair trial including benefit from the least severe
punishment.
l. THAT this honourable Court has both constitutional and inherent
jurisdictions to review sentences that appear harsh, excessive or
inconsistent with the principles of proportionality, rehabilitation and
social reintegration.
m. THAT we make this application in good faith, without malice or frivolity,
and we beseech the Court to accord me a second chance to reintegrate into
society as a reformed and responsible citizen.
4. The Applicants have moved the Court to review their sentence based on
Section 333(2) of the Criminal Procedure Code. In their affidavit they contend
that the original sentence of death for the offence of robbery with violence
contrary to Section 296(2) of the Criminal Procedure Code was reviewed on
appeal and substitution with the custodial sentence of 30 years’
imprisonment. In their latest application they further argue that they had
preferred an appeal to the Court of Appeal sitting at Kisumu but later
withdrew it as evidenced by the order of the Court of Appeal dated 27th
February 2024. It is their contention that the Court exercises discretion to
reconsider the sentence under Section 333(2) of the CPC so that they can
benefit from the letter and spirit of the law.
Decision
5. In my view the Applicants had an opportunity to litigate that issue before the
High Court which considered the death sentence and same was reviewed and
substituted with a custodial sentence of 30 years’ imprisonment. The
evidence in the affidavit seem to concentrate more on the law and other
international instruments with regard to the issue of the sentence being
Page 5 of 10
Criminal Misc. Application No.E074 of 2025
punitive, excessive and not in tandem with the constitutional imperative.
That is in so far as the affidavit goes without annexing evidence that the
Applicants had been in custody for thirteen years.
6. It is the law in Kenya both under civil and criminal law that whoever alleges
existence or non-existence of a fact in a particular dispute as provided for
under Section 107(1), 108, 109 and 112 of the Evidence Act must discharge
that burden of proof for him or her to secure judgment in their or her favor
from a Court of law. In furtherance to their fact, the issues of them having
been in remand custody remain to be within the knowledge and personal
circumstances of the Applicants. This is an old matter. It was decided by
Kakamega High Court by Musyoka J and yet the Applicants decides to lodge
a fresh application for review of that very judgment of an Appeal’s Court which
considered the appeal among other issues on conviction and sentence and
now brings a fresh application in a completely different forum which has no
advantage of the record. The proper recourse would have been to institute
review before that forum in which the session Judge was Musyoka J. He
cannot be seen to re-litigate the issue on sentence before a Court of
concurrent jurisdiction. The session Judge is still in service within the
Republic of Kenya. There are no compelling and exceptional circumstances
which have been shown or demonstrated before this Court why their
application was never filed before Musyoka J and the matter handled virtually
on the same issues now being canvassed before me within the scope of the
law as provided for under Section 362 and 364 of the Criminal Procedure
Code.
7. The Applicants were bound to prove the existence of any fact or facts that
they spent thirteen (13) years in pretrial detention in absence of any record
before Vihiga High Court. Although it is trite that in criminal cases the State
has both the constitutional and statutory duty to prove the offence or
indictment against a suspect or an accused person beyond reasonable doubt,
but in this case offenders, convicts formerly accused persons who desire this
Court to give them judgment under Section 333(2) of the CPC on computation
Page 6 of 10
Criminal Misc. Application No.E074 of 2025
of credit. It cannot be the duty of the review Court to undertake an excavation
of the record to come up with the arithmetic on pretrial detention period so
that the law can come to the aid of the Applicants. The most restated
statement in civil law to the effect that the burden of first proving the
existence or non-existence of a fact lies on the party against whom the
judgment of the Court would be given if no evidence was proved on either side
lies with that person and in our case the Applicants.
8. In the instant case going through the entire gamut of the evidence adduced
by the Applicants there is nothing to show that there is any material evidence
to support the 13-year detention period.
9. This is about whether this Court can exercise jurisdiction to review the
judgment of Musyoka J. Why were the Applicants not able to approach that
very same Court immediately soon thereafter it made its pronouncement and
decision on conviction and sentence for the offence of robbery with violence
contrary to Section 296(2) of the Penal Code? This is not about offending the
principles of human dignity, fair trial or proportionality under the
Constitution 2010 and International Human Rights instruments to which
Kenya is a party as envisaged under Article 2(5) & (6) of the Constitution. The
legal context and text being referred to by the Applicants must be applied out
of context to extend compassion and mercy in so far as the sentence of 30
years imposed by the Appeal’s Court. Undoubtedly, the record is very clear
that the Applicants had preferred to approach the Court of Appeal having
been aggrieved with the sentence of the High Court but for reasons which are
not very clear, they went ahead to withdraw the appeal rendering the
judgment of the High Court to remain as affirmed as legal a decision on
matters impacting the criminal proceedings as initiated by the Office Director
of Public Prosecution on indictment on the charge of robbery with violence
contrary to Section 296(2) of the Penal Code within the powers donated by
the Constitution under Article 157(6) & (7) of the Constitution of Kenya.
10. This Court walking down memory lane recalls that this issue of resentencing
of already convicted persons within our justice system was birthed by the
Page 7 of 10
Criminal Misc. Application No.E074 of 2025
Apex Court decision of Francis K. Muruatetu vs Republic [2017] eKLR
which specifically focused on the mandatory death sentence for the offence of
murder under Section 203 as read with Section 204 of the Penal Code. The
findings of the Apex Court although was within the realm and ambit of
murder sentencing prescription by Parliament under Section 204 of the Penal
Code on mandatory death sentence, its application opened up floodgates of
litigation to other penal laws and sentences imposed by various Courts as
against other persons convicted of such offences. If I apply the classic
formulation in Article 353 of the French Court of Criminal Procedure to the
facts of their case on interpretation of whether the Applicants have met the
threshold of the law, the answer will be in the negative and I quote;
“The law does not ask Judges for an explanation of the means by which
they are convinced, it does not set any particular rules by which they must
assess the fullness and adequacy of the evidence; it stipulates that they
must search their conscience in good faith and silently and thoughtfully ask
themselves what impression the evidence given against the accused and the
defence's arguments have made upon them. The law asks them only one
question which sums up all of their duties 'Are you personally convinced'?”
11. Going by this legal text am yet to be convinced that the Applicants have a pre
detention of thirteen (13) years which they have been unable to bring forth in
the entirety of the proceedings including the withdrawn appeal before the
Kenya Court of Appeal. What this case boils to is that the current forum lacks
the jurisdiction and authority to hear the matter on review or as they
commonly call it resentencing. Their threshold and hurdle has not been
surmounted by the Applicants for a remedy on credit period under Section
333(2) of the Criminal Procedure Code to be passed as a benefit within the
prism of the law. In making this finding I am guided by the principles in the
following case law:
The Lillian S. Principle (Owners of the Motor vessel “Lilian S” v Caltex Oil
Page 8 of 10
Criminal Misc. Application No.E074 of 2025
(Kenya) Ltd 1989 KLR, Source of Power (Samuel Kamau Macharia & Another
v. Kenya Commercial Bank & 2 Others [2012] eKLR) & Specialist Courts
(Suleiman Mwamlole Warrakah & 2 Others v. Mwamlole Tchappu Mbwana
& 4 Others [2018] eKLR:
12. From the above principles this application can be described as moot for want
of jurisdiction by order and judgment passed by Musyoka J during the
hearing and determination of the appeal in Criminal Appeal at Kakamega
High Court referenced as Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex
Kuya v Republic [2019] KEHC 8352 (KLR). As if that is not enough, the doctrine
of res judicata as borrowed from Section 7 of the Civil Procedure Act runs foul
on the same issues on sentencing already dealt with by Kakamega High
Court.
13. As explained by Professors Andrew von Hirsch and Andrew Ashworth, the
principle of proportionality is derived from desert theory that envisions
punishment as a “condemnatory institution,” punishing people as “as agents,
capable of moral deliberation.” As argued by the authors, “[t]he entire structure
of modern desert theory is one that views offenders and potential offenders as
persons, whose rights are to be taken seriously.”41 Individuals are thus
punished not just for committing an abstract wrong but also for what they
specifically did wrong. Therefore, in order to impose fair and individualized
punishment, two basic steps need to be followed:
First, society must generally decide how severely to punish a type of
wrongdoing. In other words, punishment must be anchored to the
seriousness of a type of crime. A “mandatory minimum” sentence, for
example, is Parliament’s expression of what is a fair punishment for a
type of crime. Starting points and ranges are also expressions of fair
punishments for categories of crime. Through these mechanisms, it is
decided generally what type of a punishment or result fits a type of
crime.42
Page 9 of 10
Criminal Misc. Application No.E074 of 2025
Second, just punishment must be individualized to ensure that people
are punished relative to others. Justice demands that those who are more
blameworthy receive a harsher sanction. On the other hand, if the moral
blameworthiness and the degree of responsibility of two individuals are
identical, their punishment should be roughly identical. In order to
individualize punishment in this manner, a sentencing judge must follow
a process through which he or she identifies the particular
blameworthiness and degree of responsibility of the individual(s) being
sentenced.
14. This application does not even qualify to be litigated upon within the letter
and spirit of Article 50(6) (a) & (b) of the Constitution. The Applicants in every
aspect of the application build their legal house on sand and the rock of the
law cannot come to their aid, the same application sinks to oblivion with no
orders as to costs.
DATED & DELVERED AT VIHIGA THEIR 19TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
Page 10 of 10
Criminal Misc. Application No.E074 of 2025
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E062 OF 2025
AS CONSOLIDATED WITH E072 AND E073 OF 2025
TYSON MUDOLA ………………….............…..…………………… 1ST APPLICANT
PATRICK SAHANI ............................................................. 2ND APPLICANT
ALEX KUYA ...................................................................... 3RD APPLICANT
VERSUS
REPUBLIC ………………………………………………………..………… RESPONDENT
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
1. Before this Court are three notices of motion individually filed by the
Applicants in Court on 6th November 2025, 18th & 30th of December 2025
notwithstanding that they originate from the consolidated judgment of the
Court in Criminal Appeal Case No. 942 of 2016 whose judgment is in the
repository of Kenya Law namely Tyson Mudola, Clinton Ngonda, Patrick
Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR). Apparently the
three notices of motion are expressed to be brought under Section 362 and
364 of the Criminal Procedure Code, Articles 22, 23, 25, 27, 28, 29, 50,
159(2)(d), 165(3)(a) and 259 of the Constitution of Kenya 2010, and all
enabling provisions of the law seeking the following Orders:
a. THAT this honourable Court be pleased to review, vary and/or reduce the
thirty (30) year sentence imposed upon the Applicants in Tyson Mudola,
& Others v Republic [2019] KEHC 8352 (KLR) to a lesser and more lenient
term of imprisonment.
Page 1 of 10
Criminal Misc. Application No.E074 of 2025
b. THAT the period already served by the Applicants while in custody be
taken into account pursuant to Section 333(2) of the Criminal Procedure
Code.
c. THAT the Honourable Court do make such other or further orders as may
be just and expedient in the circumstances.
2. Which application is founded on the following grounds;
a. THAT the Applicants were convicted and sentenced to death by the Senior
Resident Magistrate's Court at Hamisi in Criminal Case No. 942 of 2016,
which sentence was substituted with thirty (30) years' imprisonment by
the High Court at Kakamega in Tyson Mudola, Clinton Ngonda, Patrick
Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR).
b. THAT the Applicants withdrew their appeal to the Court of Appeal at
Kisumu upon the Supreme Court's clarification that the Court of Appeal
lacks jurisdiction to review or alter sentences, as sentencing is a matter of
fact and not law.
c. THAT this honourable Court is therefore properly seized of jurisdiction
under Articles165(3)(a) and 50(6) of the Constitution, and Sections 362
and 364 of the Criminal Procedure Code, to review the propriety and
fairness of the sentence imposed.
d. THAT the Applicants have undergone extensive rehabilitation while in
custody, as evidenced by theological and correctional certificates earned
during their imprisonment, demonstrating genuine reformation and
reintegration potential.
e. THAT their current Earliest Possible Date of Discharge (E.P.D.) is 21st
March 2038, a period of thirteen (13) years away, which is manifestly long
and disproportionate when considered alongside their demonstrated
rehabilitation.
f. THAT the sentence of thirty (30) years is manifestly excessive and contrary
to the evolving jurisprudence on proportionality, human dignity and the
rehabilitative purpose of sentencing.
Page 2 of 10
Criminal Misc. Application No.E074 of 2025
g. THAT the Court in Ali Abdalla Mwanza v Republic [2018] eKLR recognized
that, where a term sentence exceeds the national life expectancy
(approximately 67 years), it is manifestly excessive, and reduction is
warranted to ensure that punishment does not amount to a life sentence
by default.
h. THAT in Vinter and Others v United Kingdom (Applications Nos.
66069/09, 130/10 and 3896/10), the European Court of Human Rights
emphasized that continued detention must remain justifiable throughout
the sentence and should be subject to review in light of changing
circumstances and the rehabilitative progress of the prisoner.
i. THAT the Applicants continued incarceration without the possibility of
early review or re-sentencing offends the principles of human dignity, fair
trial, proportionality, and progressive realization of human rights under
the Constitution and international human rights instruments to which
Kenya is a party.
j. THAT it is in the interest of justice, equity, and humanity that this
honourable Court reviews and reduces the sentence to a term that reflects
rehabilitation, deterrence, and reformation rather than retribution.
3. In support of the application are the affidavits sworn individually by the
Applicants but with identical averments, thus:
a. That we are` the Applicants herein, convicted and sentenced in Hamisi
Senior Resident Magistrate's Court Criminal Case No. 942 of 2016 for the
offence of robbery with violence and related counts, hence competent to
swear their affidavit.
b. THAT upon appeal, the High Court at Kakamega in Tyson Mudola, Clinton
Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR)
upheld my conviction but substituted the death sentence with a term of
thirty (30) years imprisonment.
c. THAT being dissatisfied with the length of the sentence, we initially lodged
an appeal to the Court of Appeal at Kisumu but later withdrew it after
Page 3 of 10
Criminal Misc. Application No.E074 of 2025
recent jurisprudence clarified that the Court of Appeal lacks jurisdiction
to interfere with sentences since such matters are issues of fact, not law.
d. THAT we therefore bring this application before this Honourable Court at
Vihiga under its review jurisdiction conferred by Articles 50(2)(q) and
165(3)(a) of the Constitution.
e. THAT we have now served a substantial portion of the sentence and our
Earliest Possible Date of Discharge (E.P.D.) is 21st March 2038, which is
thirteen (13) years away, a period that remains disproportionately long in
view of my demonstrated rehabilitation and positive conduct in custody.
f. THAT during our incarceration, we have transformed through
rehabilitation and education and have attained theological and moral
development certificates, copies of which shall be adduced at the hearing
herein.
g. THAT we have actively participated in prison ministry, mentorship and
reformation programs aimed at moral rebuilding, conflict resolution and
peaceful coexistence, and we now live a life founded on humility, discipline
and repentance.
h. THAT we humbly urge this honourable Court to consider the decision in
Ali Abdalla Mwanza v Republic [2018] eKLR, where the Court held that
long-term sentences exceeding the national life expectancy of about 67
years are manifestly excessive and ought to be reduced to reflect the
rehabilitative purpose of punishment.
i. THAT similarly, in Vinter and Others v the United Kingdom (Applications
Nos. 66069/09,130/10 and 3896/10), the European Court of Human
Rights emphasized that the justification for continued detention must be
periodically reviewable in light of a prisoner's rehabilitation and changing
circumstances.
j. THAT this application is therefore made not to contest conviction, but to
invite this honourable Court to exercise its discretionary power of mercy,
fairness and proportionality by reviewing the 30-year sentence to a lesser
term consistent with the principles of justice and human dignity.
Page 4 of 10
Criminal Misc. Application No.E074 of 2025
k. THAT the continued incarceration for the remaining thirteen (13) years
serves no meaningful rehabilitative purpose and instead imposes undue
hardship, contrary to Articles 27, 28, 29(f) and 50(2)(p) of the Constitution,
which guarantee equality, human dignity, freedom from cruel treatment,
and the right to a fair trial including benefit from the least severe
punishment.
l. THAT this honourable Court has both constitutional and inherent
jurisdictions to review sentences that appear harsh, excessive or
inconsistent with the principles of proportionality, rehabilitation and
social reintegration.
m. THAT we make this application in good faith, without malice or frivolity,
and we beseech the Court to accord me a second chance to reintegrate into
society as a reformed and responsible citizen.
4. The Applicants have moved the Court to review their sentence based on
Section 333(2) of the Criminal Procedure Code. In their affidavit they contend
that the original sentence of death for the offence of robbery with violence
contrary to Section 296(2) of the Criminal Procedure Code was reviewed on
appeal and substitution with the custodial sentence of 30 years’
imprisonment. In their latest application they further argue that they had
preferred an appeal to the Court of Appeal sitting at Kisumu but later
withdrew it as evidenced by the order of the Court of Appeal dated 27th
February 2024. It is their contention that the Court exercises discretion to
reconsider the sentence under Section 333(2) of the CPC so that they can
benefit from the letter and spirit of the law.
Decision
5. In my view the Applicants had an opportunity to litigate that issue before the
High Court which considered the death sentence and same was reviewed and
substituted with a custodial sentence of 30 years’ imprisonment. The
evidence in the affidavit seem to concentrate more on the law and other
international instruments with regard to the issue of the sentence being
Page 5 of 10
Criminal Misc. Application No.E074 of 2025
punitive, excessive and not in tandem with the constitutional imperative.
That is in so far as the affidavit goes without annexing evidence that the
Applicants had been in custody for thirteen years.
6. It is the law in Kenya both under civil and criminal law that whoever alleges
existence or non-existence of a fact in a particular dispute as provided for
under Section 107(1), 108, 109 and 112 of the Evidence Act must discharge
that burden of proof for him or her to secure judgment in their or her favor
from a Court of law. In furtherance to their fact, the issues of them having
been in remand custody remain to be within the knowledge and personal
circumstances of the Applicants. This is an old matter. It was decided by
Kakamega High Court by Musyoka J and yet the Applicants decides to lodge
a fresh application for review of that very judgment of an Appeal’s Court which
considered the appeal among other issues on conviction and sentence and
now brings a fresh application in a completely different forum which has no
advantage of the record. The proper recourse would have been to institute
review before that forum in which the session Judge was Musyoka J. He
cannot be seen to re-litigate the issue on sentence before a Court of
concurrent jurisdiction. The session Judge is still in service within the
Republic of Kenya. There are no compelling and exceptional circumstances
which have been shown or demonstrated before this Court why their
application was never filed before Musyoka J and the matter handled virtually
on the same issues now being canvassed before me within the scope of the
law as provided for under Section 362 and 364 of the Criminal Procedure
Code.
7. The Applicants were bound to prove the existence of any fact or facts that
they spent thirteen (13) years in pretrial detention in absence of any record
before Vihiga High Court. Although it is trite that in criminal cases the State
has both the constitutional and statutory duty to prove the offence or
indictment against a suspect or an accused person beyond reasonable doubt,
but in this case offenders, convicts formerly accused persons who desire this
Court to give them judgment under Section 333(2) of the CPC on computation
Page 6 of 10
Criminal Misc. Application No.E074 of 2025
of credit. It cannot be the duty of the review Court to undertake an excavation
of the record to come up with the arithmetic on pretrial detention period so
that the law can come to the aid of the Applicants. The most restated
statement in civil law to the effect that the burden of first proving the
existence or non-existence of a fact lies on the party against whom the
judgment of the Court would be given if no evidence was proved on either side
lies with that person and in our case the Applicants.
8. In the instant case going through the entire gamut of the evidence adduced
by the Applicants there is nothing to show that there is any material evidence
to support the 13-year detention period.
9. This is about whether this Court can exercise jurisdiction to review the
judgment of Musyoka J. Why were the Applicants not able to approach that
very same Court immediately soon thereafter it made its pronouncement and
decision on conviction and sentence for the offence of robbery with violence
contrary to Section 296(2) of the Penal Code? This is not about offending the
principles of human dignity, fair trial or proportionality under the
Constitution 2010 and International Human Rights instruments to which
Kenya is a party as envisaged under Article 2(5) & (6) of the Constitution. The
legal context and text being referred to by the Applicants must be applied out
of context to extend compassion and mercy in so far as the sentence of 30
years imposed by the Appeal’s Court. Undoubtedly, the record is very clear
that the Applicants had preferred to approach the Court of Appeal having
been aggrieved with the sentence of the High Court but for reasons which are
not very clear, they went ahead to withdraw the appeal rendering the
judgment of the High Court to remain as affirmed as legal a decision on
matters impacting the criminal proceedings as initiated by the Office Director
of Public Prosecution on indictment on the charge of robbery with violence
contrary to Section 296(2) of the Penal Code within the powers donated by
the Constitution under Article 157(6) & (7) of the Constitution of Kenya.
10. This Court walking down memory lane recalls that this issue of resentencing
of already convicted persons within our justice system was birthed by the
Page 7 of 10
Criminal Misc. Application No.E074 of 2025
Apex Court decision of Francis K. Muruatetu vs Republic [2017] eKLR
which specifically focused on the mandatory death sentence for the offence of
murder under Section 203 as read with Section 204 of the Penal Code. The
findings of the Apex Court although was within the realm and ambit of
murder sentencing prescription by Parliament under Section 204 of the Penal
Code on mandatory death sentence, its application opened up floodgates of
litigation to other penal laws and sentences imposed by various Courts as
against other persons convicted of such offences. If I apply the classic
formulation in Article 353 of the French Court of Criminal Procedure to the
facts of their case on interpretation of whether the Applicants have met the
threshold of the law, the answer will be in the negative and I quote;
“The law does not ask Judges for an explanation of the means by which
they are convinced, it does not set any particular rules by which they must
assess the fullness and adequacy of the evidence; it stipulates that they
must search their conscience in good faith and silently and thoughtfully ask
themselves what impression the evidence given against the accused and the
defence's arguments have made upon them. The law asks them only one
question which sums up all of their duties 'Are you personally convinced'?”
11. Going by this legal text am yet to be convinced that the Applicants have a pre
detention of thirteen (13) years which they have been unable to bring forth in
the entirety of the proceedings including the withdrawn appeal before the
Kenya Court of Appeal. What this case boils to is that the current forum lacks
the jurisdiction and authority to hear the matter on review or as they
commonly call it resentencing. Their threshold and hurdle has not been
surmounted by the Applicants for a remedy on credit period under Section
333(2) of the Criminal Procedure Code to be passed as a benefit within the
prism of the law. In making this finding I am guided by the principles in the
following case law:
The Lillian S. Principle (Owners of the Motor vessel “Lilian S” v Caltex Oil
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(Kenya) Ltd 1989 KLR, Source of Power (Samuel Kamau Macharia & Another
v. Kenya Commercial Bank & 2 Others [2012] eKLR) & Specialist Courts
(Suleiman Mwamlole Warrakah & 2 Others v. Mwamlole Tchappu Mbwana
& 4 Others [2018] eKLR:
12. From the above principles this application can be described as moot for want
of jurisdiction by order and judgment passed by Musyoka J during the
hearing and determination of the appeal in Criminal Appeal at Kakamega
High Court referenced as Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex
Kuya v Republic [2019] KEHC 8352 (KLR). As if that is not enough, the doctrine
of res judicata as borrowed from Section 7 of the Civil Procedure Act runs foul
on the same issues on sentencing already dealt with by Kakamega High
Court.
13. As explained by Professors Andrew von Hirsch and Andrew Ashworth, the
principle of proportionality is derived from desert theory that envisions
punishment as a “condemnatory institution,” punishing people as “as agents,
capable of moral deliberation.” As argued by the authors, “[t]he entire structure
of modern desert theory is one that views offenders and potential offenders as
persons, whose rights are to be taken seriously.”41 Individuals are thus
punished not just for committing an abstract wrong but also for what they
specifically did wrong. Therefore, in order to impose fair and individualized
punishment, two basic steps need to be followed:
First, society must generally decide how severely to punish a type of
wrongdoing. In other words, punishment must be anchored to the
seriousness of a type of crime. A “mandatory minimum” sentence, for
example, is Parliament’s expression of what is a fair punishment for a
type of crime. Starting points and ranges are also expressions of fair
punishments for categories of crime. Through these mechanisms, it is
decided generally what type of a punishment or result fits a type of
crime.42
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Second, just punishment must be individualized to ensure that people
are punished relative to others. Justice demands that those who are more
blameworthy receive a harsher sanction. On the other hand, if the moral
blameworthiness and the degree of responsibility of two individuals are
identical, their punishment should be roughly identical. In order to
individualize punishment in this manner, a sentencing judge must follow
a process through which he or she identifies the particular
blameworthiness and degree of responsibility of the individual(s) being
sentenced.
14. This application does not even qualify to be litigated upon within the letter
and spirit of Article 50(6) (a) & (b) of the Constitution. The Applicants in every
aspect of the application build their legal house on sand and the rock of the
law cannot come to their aid, the same application sinks to oblivion with no
orders as to costs.
DATED & DELVERED AT VIHIGA THEIR 19TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
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