BARASA NYONGESA MAMATI VS ODPP

1. Before this Court is notice of motion dated 26th March 2026 which seeks the following orders: a. This hon Court be pleased to allow and determine this application in favor of me. b. This Hon. Court be pleased to review the sentence of 40 years awarded on me and commit the remaining sentence to a non-custodial one(probation] c. Or any other remedy that this Court may deem fit and just. 2. And which the application is made on the following grounds: a. That, I was arrested when I was 55 years, and by now I am 68years. b. That, I have served 13years in prison and I have undergone several theology studies, I have Diploma Certificate and Industry (tailoring) grade III. c. That, see the attached copies of theology studies industry(tailoring)and prison recommendation letter Thus, I pray for another chance to join the society. 3. In support of the application is the affidavit sworn by the Applicant who deponed as follows: a. That, I am a Kenyan of sound mind male adult, the Applicant in this matter hence competent to swear this affidavit 1 CRIMINAL MISC APP NO. E018 OF 2026 b. That, I was changed, convicted and sentenced to serve life imprisonment for the offence of murder, contradictory the Section 203 as read with Section 204 of the Penal Code. c. That, the Court of Appeal has rewarded me with forty(40yrs). d. That, being aggrieved and decertified by the decision of the high Court of Bungoma, I lodged an appeal as my first appeal in the Court of Appeal at Kisumu vide HCCRA 192 of 20205. e. That, I thank the Judges of Court of Appeal for the reward of 40 years. f. That, on humanitarian grounds, I am by now 68yrs of age. g. That, for 13 years I have been in prison, I have undergone several courses of theology studies and industry Tailoring section and attained Grade III in tailoring (see copies attached) of Diplomas, Certificates grade used by NITA and Prison Recommendation letter. h. That, by now l am 68yrs of age, so l asks or pray for review of sentence 40 years to lesser sentence. i. j. That, because of the skills I have obtained in prison it has made me to change my behaviors. That, I have rehabilitated fully and I ask for a second chance in the society. Decision 4. This matter at hand from the affidavit evidence was resolved by an appeal Court which reviewed the sentence of life imprisonment and substituted it with a custodial sentence of 40 years terminable period. In criminal law, the doctrine of res judicata borrowed mainly from the branch of civil law, prevents a convict from pursuing a remedy on the same set of facts. The principles are well elucidated under Section 7 of the CPA. The principle ensures legal finality, fairness, and protects Courts against the harassment of repetitive trials. 5. Since the advent of Muruatetu case in 2017, convicted Applicants have been pursuing all manner of litigation particularly on sentence review, urging the 2 CRIMINAL MISC APP NO. E018 OF 2026 Court to review the sentence downwards to either non-custodial or review the term of imprisonment already determined, halted or changed together. This application incidentally hinges on the doctrine of jurisdiction of Courts, it is also in my view an abuse of the Court process. What this means is the use of a legal process for a purpose or a way significantly from its ordinary and proper use. I consider one category of abuse is how a party or a litigant seeks to raise in a second action before a Court of law the same issues or facts which could and should have been and were not raised on the first action which was determined by the Court. The determination of whether there has been an abuse of process requires the adoption of a broad, merits-based judgment, taking account of all the public and private interests involved and all the facts of the case. When considering whether there has been an abuse of process there is no distinction in law between previous litigation where the case was settled and previous litigation where the case proceeded to judgment. 6. Generally, in criminal law, the strict civil doctrine of res judicata does not apply but both in pari materia in criminal jurisprudence both res judicata and issue estoppel are applicable. This means an issue of fact that has been distinctly tried and decided in favour of an accused person cannot be reopened in a subsequent trial against the same individual. In bringing into scope the analysis of res judicata is all about a litigation barred having been filed of the same ground which had been invoked on appeal in the first instance and also before the Court of Appeal as applied in our hierarchy of Courts. The sense, therefore, in which res judicata is invoked is that even in criminal cases there must be finality on litigation on the same issues. This is a rule of conclusiveness of a judgment as to the points decided either of facts or law or mixed facts and law. In every subsequent criminal proceeding when the Applicant or convict has exhausted his right of appeal between him/her and the State, it emerges therefore that once a matter is finally decided by a competent criminal Court followed by the exhaustion of appeal process 3 CRIMINAL MISC APP NO. E018 OF 2026 neither convict nor State for that matter can be permitted to reopen it in a subsequent litigation. I therefore hold a strong view and opinion that the doctrine of res judicata is not provided for under the CPC but such a rule in civil law if not applied in pari materia to the criminal branch of law and having taken into account the constitutional imperatives and the provisions of the Court there would be no end to litigation in criminal cases and the convicts or the State would continue to file multiplicity of applications under the guise of meeting the ends of justice. 7. What would the pre- requisites which are necessary to implement the principles of res judicata in criminal cases or proceedings? There must be a final judgment, the judgment must be on the merits, the issue must be the same in the first and second suits, the parties in the second action must be the same as those in the first or the successor in interest of a party to the prior action. [emphasis is mine] 8. In the instant case, in view of the facts now on record traceable to the primary Court, which tried the Applicant and later convicted and sentenced him to life imprisonment for the offense and later he preferred an appeal to a superior Court which sustained the conviction but varied the life imprisonment and have it substituted it with 40 years custodial sentence cannot again be relitigated seeking review of sentence before this Court. The application is dismissed under Section 382 of the CPC. DATED AND DELIVERED AT VIHIGA THIS 29TH DAY OF MAY 2026