REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
MISC CRIMINAL APPLICATION NO E003 OF 2026
DENNIS MULIGA…………………………………………………………...APPLICANT
VERSUS
REPUBLIC………………………………………………………………..RESPONDENT
Coram:
Before Justice R. Nyakundi
M/s Leina Koech for the State
RULING
1. What is pending before this Honourable Court for determination is a Notice
of Motion Application dated 19th day of January 2026 where the Applicant
is 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 Applicant in Muliga &
another v Republic (Criminal Appeal 101 of 2019) KEHC 14245 (KLR)
to a lesser and more lenient term of imprisonment.
b. That the period already served by the Applicant while in custody as
from 29.11.2018 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. The Application is made on the following grounds on the face of it among
others: -
a. That the Applicant was convicted and sentenced to thirty (30) years
imprisonment by the Senior Resident Magistrate's Court at Hamisi in
Criminal Case No. 1317 of 2018, which sentence was upheld by the
High Court at Kakamega in Muliga & another v Republic (Criminal
Appeal 101 of 2019) KEHC 14245 (KLR).
b. That the Applicant lodged an application seeking extension of time to
appeal
to
the
Court
of
Appeal
at
Kisumu
COACRAPPL/E111/2024 which was dismissed by the Court.
vide
1
MISC CRIMINAL APPLICATION NO E003 OF 2026
c. That this Honourable Court is therefore properly seized of jurisdiction
under Articles 165(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. That his current Earliest Possible Date of Discharge (E.P.D.) is 13th
September 2039, a period of thirteen (13) years away, which is
manifestly long and disproportionate when considered alongside his
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.
g. That the Court in Ali Abdalla Mwanza v Republic 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 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.
2
MISC CRIMINAL APPLICATION NO E003 OF 2026
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. The Application was supported by the annexed affidavit sworn by the
Applicant whose deponents echo the grounds in support of the Application.
Analysis and Determination
4. I have carefully considered the Application and the supporting affidavit
and. In my considered view, the following issue arise for determination: -
Whether the present application is barred by the doctrine of res judicata?
5. A perusal of the record herein reveals that the Applicant had previously
challenged both conviction and sentence before the High Court at
Kakamega in Muliga & Another Vs Republic (Criminal Appeal No 101
of 2019) [2022] KEHC 14245 (KLR) where the sentence of thirty (30)
years imprisonment imposed by the trial court was considered and upheld.
The Applicant thereafter moved to the Court of Appeal vide
COACRAPPL/E111/2024 seeking extension of time to appeal against the
said judgment, which application was dismissed.
6. The Applicant has now returned before this Court seeking review and
reduction of the very sentence that was conclusively considered and
affirmed by the High Court on appeal. In essence, the Applicant is inviting
this Court to reopen and reconsider issues relating to sentence propriety,
proportionality and fairness that have already been judicially determined.
7. The doctrine of res judicata is anchored under Section 7 of the Civil
Procedure Act which provides that no court shall try any suit or issue in
which the matter directly and substantially in issue has already been
directly and substantially in issue in a former suit between the same
parties, litigating under the same title, and which has been heard and
finally determined by a court of competent jurisdiction. Specifically,
section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the
doctrine of Res Judicata in the following terms: -
3
MISC CRIMINAL APPLICATION NO E003 OF 2026
“No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in
a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in a
Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally
decided by such Court.”
8. The Civil Procedure Act also provides explanations with respect to the
application of the res judicata rule. Explanations 1-3 are in the following
terms: -
a. “Explanation. (1) - The expression “former suit” means a suit which
has been decided before the suit in question whether or not it was
instituted before it.
b. Explanation. (2) - For the purposes of this section, the competence of a
court shall be determined irrespective of any provision as to right of
appeal from the decision of that court.
c. Explanation. (3) - The matter above referred to must in the former suit
have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.’’
9. The test for determining the Application of the doctrine of res-judicata in
any given case is spelt out under Section 7 of the Civil Procedure Act.
In Independent Electoral & Boundaries Commission vs Maina Kiai &
5 Others [2017] eKLR, the Supreme Court while considering the said
provision held that all the elements outlined thereunder must be satisfied
conjunctively for the doctrine to be invoked. That is: -
a. The suit or issue was directly and substantially in issue in the former
suit.
b. That former suit was between the same parties or parties under whom
they or any of them claim.
c. Those parties were litigating under the same title.
d. The issue was heard and finally determined in the former suit.
4
MISC CRIMINAL APPLICATION NO E003 OF 2026
e. The court that formerly heard and determined the issue was
competent to try the subsequent suit or the suit in which the issue is
raised.”
10. This court has a duty to guard against the tendency to evade the doctrine
of res judicata. In the case of Attorney General & Another ET Vs (2012)
eKLR it was held that: -
“The courts must always be vigilant to guard litigants evading the
doctrine of res judicata by introducing new causes of action so as to
seek the same remedy before the court. The test is whether the
plaintiff in the second suit is trying to bring before the court in another
way and in form of a new cause of action which has been resolved by
a court of competent jurisdiction. In the case of Omondi s NBK &
Others (2001) EA 177 the court held that “parties cannot evade the
doctrine of res judicata by merely adding other parties or causes of
action in a subsequent suit”.
11. Although codified under civil law, the doctrine is equally applicable in
criminal and constitutional proceedings where circumstances so demand
in order to prevent abuse of court process, multiplicity of proceedings and
endless litigation. Courts have consistently held that there must be finality
to litigation and that parties ought not to continuously reopen matters
already conclusively adjudicated upon.
12. Applying the foregoing principles to the present Application, it is evident
that the parties herein are substantially the same. The question relating to
the legality, propriety and extent of the Applicant’s sentence was directly
in issue before the appellate court in Muliga & Another v Republic. The
appellate court considered the sentence and upheld it. That determination
was final unless upset by a superior court.
13. The Applicant does not challenge the legality of the conviction but merely
seeks reduction of sentence. The question therefore is whether this Court
can sit on appeal or review over its own sentence. Notably, Article 50(2)(p)
as read with 50(2)(q) of the Constitutions provides this court with
jurisdiction to review a sentence as follows: -
5
MISC CRIMINAL APPLICATION NO E003 OF 2026
(2) Every accused person has the right to a fair trial, which includes
the right: -
(p)to the benefit of the least severe of the prescribed punishments for
an offence, if the prescribed punishment for the offence has been
changed between the time that the offence was committed and the
time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as
prescribed by law.
14. Similarly, Sections 362 and 364 of the Criminal Procedure Code donate
revisionary jurisdiction to the High Court over subordinate courts only.
Section 364(5) of the Criminal Procedure code provides as follows: -
(5) When an appeal lies from a finding, 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.
15. The Applicant cannot therefore re-litigate the issue of sentence before
another High Court Judge under the guise of sentence review or revision.
To permit such a course would amount to this Court sitting on appeal over
a judgment of a court of concurrent jurisdiction, which is impermissible in
law.
16. The Applicant’s reliance on rehabilitation, prison reform, human dignity
and restorative justice does not alter the substance of the dispute before
Court. These are matters that either were considered or ought to have been
raised during the appellate proceedings. A litigant cannot evade the
doctrine of res judicata merely by introducing new arguments or
rephrasing the relief sought.
17. Equally, Article 159(2)(d) of the Constitution cannot be invoked to defeat
substantive legal doctrines. The constitutional command that justice be
administered without undue regard to procedural technicalities was never
intended to aid repetitive litigation or reopen matters already conclusively
determined by competent courts. The Court further notes that the
Applicant unsuccessfully sought extension of time before the Court of
Appeal. Having failed to secure relief before the superior appellate court,
6
MISC CRIMINAL APPLICATION NO E003 OF 2026
the Applicant cannot now revert to the High Court seeking substantially
similar orders. Litigation must come to an end.
18. Consequently, I find and hold that the present Application is res judicata
as the issue of sentence was conclusively determined in Muliga &
Another Vs Republic and cannot be reopened before this Court. In the
premises, the Notice of Motion Application dated 19th January 2026 lacks
merit and is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026
IN THE HIGH COURT AT VIHIGA
MISC CRIMINAL APPLICATION NO E003 OF 2026
DENNIS MULIGA…………………………………………………………...APPLICANT
VERSUS
REPUBLIC………………………………………………………………..RESPONDENT
Coram:
Before Justice R. Nyakundi
M/s Leina Koech for the State
RULING
1. What is pending before this Honourable Court for determination is a Notice
of Motion Application dated 19th day of January 2026 where the Applicant
is 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 Applicant in Muliga &
another v Republic (Criminal Appeal 101 of 2019) KEHC 14245 (KLR)
to a lesser and more lenient term of imprisonment.
b. That the period already served by the Applicant while in custody as
from 29.11.2018 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. The Application is made on the following grounds on the face of it among
others: -
a. That the Applicant was convicted and sentenced to thirty (30) years
imprisonment by the Senior Resident Magistrate's Court at Hamisi in
Criminal Case No. 1317 of 2018, which sentence was upheld by the
High Court at Kakamega in Muliga & another v Republic (Criminal
Appeal 101 of 2019) KEHC 14245 (KLR).
b. That the Applicant lodged an application seeking extension of time to
appeal
to
the
Court
of
Appeal
at
Kisumu
COACRAPPL/E111/2024 which was dismissed by the Court.
vide
1
MISC CRIMINAL APPLICATION NO E003 OF 2026
c. That this Honourable Court is therefore properly seized of jurisdiction
under Articles 165(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. That his current Earliest Possible Date of Discharge (E.P.D.) is 13th
September 2039, a period of thirteen (13) years away, which is
manifestly long and disproportionate when considered alongside his
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.
g. That the Court in Ali Abdalla Mwanza v Republic 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 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.
2
MISC CRIMINAL APPLICATION NO E003 OF 2026
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. The Application was supported by the annexed affidavit sworn by the
Applicant whose deponents echo the grounds in support of the Application.
Analysis and Determination
4. I have carefully considered the Application and the supporting affidavit
and. In my considered view, the following issue arise for determination: -
Whether the present application is barred by the doctrine of res judicata?
5. A perusal of the record herein reveals that the Applicant had previously
challenged both conviction and sentence before the High Court at
Kakamega in Muliga & Another Vs Republic (Criminal Appeal No 101
of 2019) [2022] KEHC 14245 (KLR) where the sentence of thirty (30)
years imprisonment imposed by the trial court was considered and upheld.
The Applicant thereafter moved to the Court of Appeal vide
COACRAPPL/E111/2024 seeking extension of time to appeal against the
said judgment, which application was dismissed.
6. The Applicant has now returned before this Court seeking review and
reduction of the very sentence that was conclusively considered and
affirmed by the High Court on appeal. In essence, the Applicant is inviting
this Court to reopen and reconsider issues relating to sentence propriety,
proportionality and fairness that have already been judicially determined.
7. The doctrine of res judicata is anchored under Section 7 of the Civil
Procedure Act which provides that no court shall try any suit or issue in
which the matter directly and substantially in issue has already been
directly and substantially in issue in a former suit between the same
parties, litigating under the same title, and which has been heard and
finally determined by a court of competent jurisdiction. Specifically,
section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the
doctrine of Res Judicata in the following terms: -
3
MISC CRIMINAL APPLICATION NO E003 OF 2026
“No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in
a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in a
Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally
decided by such Court.”
8. The Civil Procedure Act also provides explanations with respect to the
application of the res judicata rule. Explanations 1-3 are in the following
terms: -
a. “Explanation. (1) - The expression “former suit” means a suit which
has been decided before the suit in question whether or not it was
instituted before it.
b. Explanation. (2) - For the purposes of this section, the competence of a
court shall be determined irrespective of any provision as to right of
appeal from the decision of that court.
c. Explanation. (3) - The matter above referred to must in the former suit
have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.’’
9. The test for determining the Application of the doctrine of res-judicata in
any given case is spelt out under Section 7 of the Civil Procedure Act.
In Independent Electoral & Boundaries Commission vs Maina Kiai &
5 Others [2017] eKLR, the Supreme Court while considering the said
provision held that all the elements outlined thereunder must be satisfied
conjunctively for the doctrine to be invoked. That is: -
a. The suit or issue was directly and substantially in issue in the former
suit.
b. That former suit was between the same parties or parties under whom
they or any of them claim.
c. Those parties were litigating under the same title.
d. The issue was heard and finally determined in the former suit.
4
MISC CRIMINAL APPLICATION NO E003 OF 2026
e. The court that formerly heard and determined the issue was
competent to try the subsequent suit or the suit in which the issue is
raised.”
10. This court has a duty to guard against the tendency to evade the doctrine
of res judicata. In the case of Attorney General & Another ET Vs (2012)
eKLR it was held that: -
“The courts must always be vigilant to guard litigants evading the
doctrine of res judicata by introducing new causes of action so as to
seek the same remedy before the court. The test is whether the
plaintiff in the second suit is trying to bring before the court in another
way and in form of a new cause of action which has been resolved by
a court of competent jurisdiction. In the case of Omondi s NBK &
Others (2001) EA 177 the court held that “parties cannot evade the
doctrine of res judicata by merely adding other parties or causes of
action in a subsequent suit”.
11. Although codified under civil law, the doctrine is equally applicable in
criminal and constitutional proceedings where circumstances so demand
in order to prevent abuse of court process, multiplicity of proceedings and
endless litigation. Courts have consistently held that there must be finality
to litigation and that parties ought not to continuously reopen matters
already conclusively adjudicated upon.
12. Applying the foregoing principles to the present Application, it is evident
that the parties herein are substantially the same. The question relating to
the legality, propriety and extent of the Applicant’s sentence was directly
in issue before the appellate court in Muliga & Another v Republic. The
appellate court considered the sentence and upheld it. That determination
was final unless upset by a superior court.
13. The Applicant does not challenge the legality of the conviction but merely
seeks reduction of sentence. The question therefore is whether this Court
can sit on appeal or review over its own sentence. Notably, Article 50(2)(p)
as read with 50(2)(q) of the Constitutions provides this court with
jurisdiction to review a sentence as follows: -
5
MISC CRIMINAL APPLICATION NO E003 OF 2026
(2) Every accused person has the right to a fair trial, which includes
the right: -
(p)to the benefit of the least severe of the prescribed punishments for
an offence, if the prescribed punishment for the offence has been
changed between the time that the offence was committed and the
time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as
prescribed by law.
14. Similarly, Sections 362 and 364 of the Criminal Procedure Code donate
revisionary jurisdiction to the High Court over subordinate courts only.
Section 364(5) of the Criminal Procedure code provides as follows: -
(5) When an appeal lies from a finding, 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.
15. The Applicant cannot therefore re-litigate the issue of sentence before
another High Court Judge under the guise of sentence review or revision.
To permit such a course would amount to this Court sitting on appeal over
a judgment of a court of concurrent jurisdiction, which is impermissible in
law.
16. The Applicant’s reliance on rehabilitation, prison reform, human dignity
and restorative justice does not alter the substance of the dispute before
Court. These are matters that either were considered or ought to have been
raised during the appellate proceedings. A litigant cannot evade the
doctrine of res judicata merely by introducing new arguments or
rephrasing the relief sought.
17. Equally, Article 159(2)(d) of the Constitution cannot be invoked to defeat
substantive legal doctrines. The constitutional command that justice be
administered without undue regard to procedural technicalities was never
intended to aid repetitive litigation or reopen matters already conclusively
determined by competent courts. The Court further notes that the
Applicant unsuccessfully sought extension of time before the Court of
Appeal. Having failed to secure relief before the superior appellate court,
6
MISC CRIMINAL APPLICATION NO E003 OF 2026
the Applicant cannot now revert to the High Court seeking substantially
similar orders. Litigation must come to an end.
18. Consequently, I find and hold that the present Application is res judicata
as the issue of sentence was conclusively determined in Muliga &
Another Vs Republic and cannot be reopened before this Court. In the
premises, the Notice of Motion Application dated 19th January 2026 lacks
merit and is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026