REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E074 OF 2025
CLINTON NGONDA ………………………………………………….………. APPLICANT
VERSUS
REPUBLIC ………………………………………………………..………… RESPONDENT
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
1. Before this court is a Notice of Motion dated 18th December 2025 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. The Applicant seeks the following
Orders:
a. THAT this Honourable Court be pleased to review, vary and/or reduce the
thirty (30) year sentence imposed upon the Applicant in Tyson Mudola,
Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352
(KLR) to a lesser and more lenient term of imprisonment.
b. THAT the period already served by the Applicant 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 found on the following grounds;
a. THAT the Applicant was 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
Page 1 of 9
Criminal Misc. Application No.E074 of 2025
Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR).
b. THAT the Applicant withdrew his 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 Applicant has undergone extensive rehabilitation while in
custody, as evidenced by theological and correctional certificates earned
during his imprisonment, demonstrating genuine reformation and
reintegration potential.
e. HAT his 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
rehabilitation.
when considered alongside his demonstrated
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.
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 and3896/10), 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.
Page 2 of 9
Criminal Misc. Application No.E074 of 2025
i. THAT the Applicant's 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 is the affidavit of one Clinton Ngonda who
deponed as follows:
a. That I am the Applicant 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 this
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, I initially lodged
an appeal to the Court of Appeal at Kisumu but later withdrew it after
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 I 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 I have now served a substantial portion of the sentence and my
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 my incarceration, I have transformed through rehabilitation
and education and have attained theological and moral development
Page 3 of 9
Criminal Misc. Application No.E074 of 2025
certificates, copies of which shall be adduced at the hearing herein.
g. THAT I have actively participated in prison ministry, mentorship and
reformation programs aimed at moral rebuilding, conflict resolution and
peaceful coexistence, and I now live a life founded on humility, discipline
and repentance.
h. THAT I 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 an proportionality by reviewing the 30-year sentence to a lesser
term consistent with the principles of justice and human dignity.
k. THAT the continued incarceration for the remaining thirteen (13) years
serves no meaningful rehabilitative purpose and instead imposes undue
hardship, contrary to Articles27,28,29(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 I make this application in good faith, without malice or frivolity, and
I beseech the Court to accord me a second chance to reintegrate into
Page 4 of 9
Criminal Misc. Application No.E074 of 2025
society as a reformed and responsible citizen.
4. The Applicant have move the Court to review his sentence based on Section
333(2) of the Criminal Procedure Code. In his affidavit he contends 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 this
latest application he further argues that he 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 his contention
that the Court exercises discretion to reconsider the sentence under Section
333(2) of the CPC so that he can benefit from the letter and spirit of the law.
Decision
5. In my view the Applicant 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
punitive, excessive and not in tandem with the constitutional imperative.
That is in so far as the affidavit goes without annexing evidence that the
Applicant 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 his or her favor from
a Court of law. In furtherance to this fact, the issues of him having been in
remand custody remain to be within the knowledge and personal
circumstances of the Applicant. This is an old matter. It was decided by
Kakamega High Court by Musyoka J and yet the Applicant 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
Page 5 of 9
Criminal Misc. Application No.E074 of 2025
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 this
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 Applicant was bound to prove the existence of any fact or facts that he
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 it an offender, convict formerly an accused person who desires this Court
to give him judgment under Section 333(2) of the CPC on computation 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 Applicant. 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 Applicant.
8. In the instant case going through the entire gamut of the evidence adduced
by the Applicant 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 was the Applicant not able to approach that
very same Court immediately soon thereafter it made its pronouncement and
Page 6 of 9
Criminal Misc. Application No.E074 of 2025
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 Applicant 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 Applicant 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, he 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
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 this case on interpretation of whether the Applicant has 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
Page 7 of 9
Criminal Misc. Application No.E074 of 2025
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 Applicant has a pre
detention of thirteen (13) years which he has 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. This threshold and hurdle has not been
surmounted by the Applicant 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
(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. This application does not even qualify to be litigated
upon within the letter and spirit of Article 50(6) (a) & (b) of the Constitution.
Page 8 of 9
Criminal Misc. Application No.E074 of 2025
The Applicant in every aspect of the application build his legal house on sand
and the rock of the law cannot come to his aid, this same application sinks
to oblivion with no orders as to costs.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
Page 9 of 9
Criminal Misc. Application No.E074 of 2025
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E074 OF 2025
CLINTON NGONDA ………………………………………………….………. APPLICANT
VERSUS
REPUBLIC ………………………………………………………..………… RESPONDENT
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
1. Before this court is a Notice of Motion dated 18th December 2025 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. The Applicant seeks the following
Orders:
a. THAT this Honourable Court be pleased to review, vary and/or reduce the
thirty (30) year sentence imposed upon the Applicant in Tyson Mudola,
Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352
(KLR) to a lesser and more lenient term of imprisonment.
b. THAT the period already served by the Applicant 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 found on the following grounds;
a. THAT the Applicant was 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
Page 1 of 9
Criminal Misc. Application No.E074 of 2025
Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR).
b. THAT the Applicant withdrew his 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 Applicant has undergone extensive rehabilitation while in
custody, as evidenced by theological and correctional certificates earned
during his imprisonment, demonstrating genuine reformation and
reintegration potential.
e. HAT his 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
rehabilitation.
when considered alongside his demonstrated
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.
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 and3896/10), 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.
Page 2 of 9
Criminal Misc. Application No.E074 of 2025
i. THAT the Applicant's 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 is the affidavit of one Clinton Ngonda who
deponed as follows:
a. That I am the Applicant 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 this
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, I initially lodged
an appeal to the Court of Appeal at Kisumu but later withdrew it after
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 I 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 I have now served a substantial portion of the sentence and my
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 my incarceration, I have transformed through rehabilitation
and education and have attained theological and moral development
Page 3 of 9
Criminal Misc. Application No.E074 of 2025
certificates, copies of which shall be adduced at the hearing herein.
g. THAT I have actively participated in prison ministry, mentorship and
reformation programs aimed at moral rebuilding, conflict resolution and
peaceful coexistence, and I now live a life founded on humility, discipline
and repentance.
h. THAT I 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 an proportionality by reviewing the 30-year sentence to a lesser
term consistent with the principles of justice and human dignity.
k. THAT the continued incarceration for the remaining thirteen (13) years
serves no meaningful rehabilitative purpose and instead imposes undue
hardship, contrary to Articles27,28,29(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 I make this application in good faith, without malice or frivolity, and
I beseech the Court to accord me a second chance to reintegrate into
Page 4 of 9
Criminal Misc. Application No.E074 of 2025
society as a reformed and responsible citizen.
4. The Applicant have move the Court to review his sentence based on Section
333(2) of the Criminal Procedure Code. In his affidavit he contends 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 this
latest application he further argues that he 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 his contention
that the Court exercises discretion to reconsider the sentence under Section
333(2) of the CPC so that he can benefit from the letter and spirit of the law.
Decision
5. In my view the Applicant 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
punitive, excessive and not in tandem with the constitutional imperative.
That is in so far as the affidavit goes without annexing evidence that the
Applicant 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 his or her favor from
a Court of law. In furtherance to this fact, the issues of him having been in
remand custody remain to be within the knowledge and personal
circumstances of the Applicant. This is an old matter. It was decided by
Kakamega High Court by Musyoka J and yet the Applicant 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
Page 5 of 9
Criminal Misc. Application No.E074 of 2025
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 this
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 Applicant was bound to prove the existence of any fact or facts that he
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 it an offender, convict formerly an accused person who desires this Court
to give him judgment under Section 333(2) of the CPC on computation 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 Applicant. 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 Applicant.
8. In the instant case going through the entire gamut of the evidence adduced
by the Applicant 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 was the Applicant not able to approach that
very same Court immediately soon thereafter it made its pronouncement and
Page 6 of 9
Criminal Misc. Application No.E074 of 2025
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 Applicant 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 Applicant 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, he 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
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 this case on interpretation of whether the Applicant has 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
Page 7 of 9
Criminal Misc. Application No.E074 of 2025
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 Applicant has a pre
detention of thirteen (13) years which he has 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. This threshold and hurdle has not been
surmounted by the Applicant 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
(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. This application does not even qualify to be litigated
upon within the letter and spirit of Article 50(6) (a) & (b) of the Constitution.
Page 8 of 9
Criminal Misc. Application No.E074 of 2025
The Applicant in every aspect of the application build his legal house on sand
and the rock of the law cannot come to his aid, this same application sinks
to oblivion with no orders as to costs.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
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Criminal Misc. Application No.E074 of 2025