1. This is a Ruling over an undated notice of motion forwarded by Kitui Main Prisons on 08.07.2026. However, it was filed online on 18.06.2026, which was 7 days after another decision by this Court. It seeks to review Mutende J's decision to sentence him to 20 years' imprisonment, taking into account the period he was in custody.
2. The applicant is indefatigable as well as vexatious. Dominic Malonza Mulwa, and 2 others were charged with Robbery with Violence contrary to Section 296(2) of the Penal Code in Kitui Principal Magistrate’s Court Criminal Case No. 724 of 2011 by Hon. E. Boke (PM) on 22.09.16. The Particulars of the offence were that on the 22nd day of October, 2011 at about 6.00 a.m. at Kitui Township Location in Kitui County, jointly with others not before Court while armed with a dangerous weapon namely pistol robbed Jackson Muchemi Kitonyo of one leather briefcase containing unknown amount of money and at or immediately before or immediately after the time of such robbery killed the said Jackson Muchemi Kitonyo.
3. He was tried and rightly sentenced to death, a sentence he well deserved. He appealed to this court vide Criminal Appeal No. 60 of 2016. The High Court, relying on Muruatetu 1, reduced the death sentence to 20 years, taking into account 5 years he had spent in custody. In making the decision reported as Dominic Malonza Mulwa & 2 others v Republic [2019] KEHC 5010 (KLR) , Mutende J, stated as follows:
“35. This was an offence that was planned prior to being committed. The conduct of each Appellant was explained by witnesses who testified. Each one of them took part as a perpetrator of the offence therefore the common intention was proved.
36. From the foregoing, even if there was no direct evidence as to the individuals who took away the briefcase that contained money which was in possession of the Deceased which became possible as a result of the violence that was occasioned on his person resulting in his death, circumstantial evidence adduced unerringly pointed towards the Appellants as persons who committed the offence. Therefore, there was no misdirection on the part of the learned Magistrate when she returned a verdict of guilty and convicted the three Appellants. The Appeal against the conviction therefore fails and is dismissed.
37. With regard to the sentence imposed, in Petition No. 15 of 2016 Francis Kairoko Muruatetu and Another vs. Republic (2017) eKLR the Supreme Court held that the mandatory death sentence is unconstitutional. The Appellants were given the opportunity to mitigate. It was stated on their part that they maintained their innocence but the Court was called upon to consider the fact of their age, as they were young men with young families and old parents who depend on them as their source of protection.
38. I do take into consideration the nature of the offence and circumstances in which it was committed. Life was lost following the attack by a dangerous weapon. I note that the Appellants were in custody for five (5) years prior to being sentenced which I take into consideration.
39. Therefore, I set aside the death sentence imposed and re-sentence each Appellant to twenty (20) years imprisonment to be effective from the date of sentencing by the trial Court.”
4. The Court relied on the decision of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) , where the Supreme Court (DK Maraga, PM Mwilu, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola] held as follows:
“The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution .”
5. Subsequent to this decision, the Supreme Court[ MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, N Ndungu, W Ouko]made further clarifications as follows in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) :
“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution . It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.
15.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code , that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.
Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below us as follows:
i. The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code ;”
6. Thereafter, the applicant embarked on a filing spree. He filed Criminal Appeal No. 30 of 2019 in this court. It was an appeal to the High Court challenging Justice Mutende’s decision. It met its Waterloo before Limo J on 25.05.2021. He also filed Misc Application No. 43 of 2019, which was struck out by Limo J on 25.05.2021. He further filed Misc Application No. E001 of 2022, which was struck out by Limo J on 23.02.2023.
7. He did not relent. He subsequently filed Miscellaneous Application No. E081 of 2021 seeking the following orders:
a. THAT the petitioner herein was charged in Criminal Case No. 724 of 2011 at Kitui Law Court or he offence of Robbery with violence contrary to section 296(2) of the Penal Code, tried upon the charge found guilty hence convicted and sentenced to DEATH.
b. THAT, the petitioner after conviction and sentence appealed against both in the High Court Kitui vide HCCRA No. 60 of 2016 whereby the DEATH sentence was set aside and substituted with a 20 years’ term of imprisonment.
c. THAT the petitioner in this regard seeks court intervention in sentence computation only in compliance with Section 333(2) of the Criminal Procedure Code.
d. THAT the court be pleased to note that my co-accused persons were acquitted by Kitui High Court on 18 th June 2025 on Petition No. E063 of 2024.
8. That application was struck out by Riechi J on 11.06.2026, who stated as follows:
10. That from the Judgment the Judge after considering all the factors, including the time in remand custody reduced the sentence to 20 years imprisonment and specifically stated that the period of imprisonment will run from date of conviction in the Magistrate’s court.
11. From the Judgment it is clear to this court that the Hon. Judge took into account the period in remand when she sentenced the applicant and his co-appellants to 20 years imprisonment. I find no merit in this application, which is hereby dismissed. The applicant to serve his sentence as per order of Mutende J.
Dated, signed and delivered at Kitui this 11 th day of June 2026.”
9. Seven days later, he filed the present application, seeking the following orders:
a. spent
b. That the honourable Court be pleased to give orders for a twenty-year sentence imposed on me to commence from the date of arrest as stipulated in section 333(2) of the criminal procedure code as read with section 362 and paragraphs 2.3.15(ii)(iv)(vi) of the sentencing policy guidelines, article 22(1),23(3)(f), 25(c ), 27, 28, 47(1), 165(3)(3) of the constitution.
c. Na
d. NA
10. All the applications turn on a single question, namely, the application of section 333(2) of the Criminal Procedure Code. The section provides as follows:
“(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.
(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
11. The operative words are that, where the accused has been held in custody, the sentence shall take account of the period spent in custody. In this matter, the High Court found that the applicant was in custody for 5 years. The 5 years in custody were taken into account after the death penalty was set aside and replaced with 20 years' imprisonment. In all four cases subsequent to appeal number 60 of 2016, the High Court pronounced itself functus officio.
12. Two issues arose, namely whether the court is functus officio and whether it has jurisdiction to revise the sentence imposed by the High Court and dealt with in 4 other matters by this court. The High Court's revisionary powers are set out in section 362 of the Criminal Procedure Code as follows:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
13. What the High Court can do under its revision jurisdiction is set out in Section 364 of the Criminal Procedure Code, which provides as follows:
(1) in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –
(a)In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;
(b)In the case of any other order than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudiced of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence. Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a Subordinate Court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. (5)When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”
14. The proceedings herein do not arise from a decision of the subordinate court but from that of the High Court. This court dealt with this issue. In fact, in Misc E081 of 2021, this court decided the same subject matter. In effect, this court, vis-à-vis the sentence, is now functus officio.
15. This court cannot, by craft or innovation, revise the decisions of 4 other High Courts on the same issue. In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court stated:
“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
16. The court cannot, by any stretch of the imagination, surmise, hyperbole or conjecture, develop or usurp jurisdiction where there is none. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as he then was, stated as follows:
“With that, I return to the issue of jurisdiction and to the words of Section 20(2)(m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said that this is consistent with authority: “By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.”
17. The revisionary power of this court also serves a supervisory function, and the court is empowered by Article 165(6) of the Constitution to review a decision of a subordinate court. The relevant provision reads as follows:
“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”
18. There is no decision of the subordinate court to be revised. The High Court delivered the last decision on sentence. This court cannot purport to address whether the sentence can be revised. The question of functus officio also arises. The court cannot supervise a superior court.
19. The question was addressed by Thande, J, in the case of Mureithi v Republic [2025] KEHC 3519 (KLR) , as follows:
“4. At the very outset, this Court must determine whether it has jurisdiction to entertain the Application before it. The law is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution , statute or both. This was succinctly stated by the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, as follows : A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.
5.This Court derives its jurisdiction principally from Article 165(3) of the Constitution which confers upon it unlimited original jurisdiction in criminal and civil matters. The provision clearly delineates and demarcates what the Court can and cannot do. The jurisdiction of this Court includes supervisory powers. By dint of Article 165(6) however, this Court cannot supervise superior courts. It provides:
The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
6.The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution , which provides:
The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
7. The Petitioner was convicted and sentenced by this Court. Additionally, the Applicant unsuccessfully appealed to the Court of Appeal, which upheld both the conviction and sentence. What he now seeks is that this Court reviews its own decision and that of the Court of Appeal. While this Court has wide unlimited jurisdiction under Article 165 of the Constitution , it does not have jurisdiction over a superior court.”
20. The next question concerns functus officio. This was addressed in the case of Murgani v Kenya Revenue Authority (Civil Application 4 of 2014) [2014] KESC 2 (KLR) (19 December 2014) (Ruling), in which the Supreme Court [PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] stated as follows:
“It is a general principle of law that a Court after passing Judgment becomes functus officio and cannot revisit the Judgment on the merits, or purport to exercise a judicial power over the same matter, save as provided by law. In Lakhamshi Brothers v. Raja & Sons [1966] EA 313 the then Court of Appeal held as follows:
“This court is now the final Court of Appeal and when this court delivers its judgement, that judgement is, so far as the particular proceedings are concerned, the end of the litigation. It determines in respect of the parties to the particular proceedings their final legal position, subject as I have said to the limited application of the slip rule.”
21. Functus officio was also addressed in the case of Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Limited) v Telkom Kenya Limited (Motion 24 of 2014) [2014] KESC 7 (KLR) (25 November 2014) (Ruling), where the Court of Appeal [EM Githinji, W Karanja & Po Kiage, JJA] held as follows:
“21. Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognised in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);
22.The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
23. Where there had been a slip in drawing it up, and where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”
The Supreme Court in Raila Odinga v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
24. The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions, and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;”
22. The Supreme Court decision in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR), [WM Mutunga, CJ & P, KH Rawal, DCJ & VP, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] set out the following position on res judicata.
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “ The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law ,” (2005) 122 SALJ 832, has thus explicated this concept:
‘The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.
19. This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”
23. The High Court decided the matter on appeal. The powers of this court in relation to the lower court matter were exhausted. The court's decisional powers were exhausted, and it became functus officio. Consequently, the court has no jurisdiction to hear this matter.
24. Secondly, this point was decided three times by Limo J, once by Mutende J and once by Riechi J. This means that the question of section 333(2) is res judicata. There must be an end to litigation. In essence, therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those previously in dispute between the same parties, and the same must have been determined on the merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378 observed thus:
“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
25. The question of res judicata was discussed at length by R Nyakundi J in the case of Samoei v Republic [2026] KEHC 1067 (KLR), as follows:
“The Applicant is seeking leave of this court to have a second bite of the cherry on the same issues which have been addressed by this very same court therefore rendering the entire motion res judicata . This doctrine although more pronounced and applicable in the realm of Civil Law it is also applicable in the branch of criminal law if the facts meets the threshold under Section 7 of the Civil Procedure Act . The Supreme Court in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another , motion No. 42 of 2014 [2016] eKLR state as follows:“ res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights…. res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept….”
4.This issue was also discussed further in Haslbury’s Laws of England , Paragraph 1174. However, of importance to this discussion is the wording of Section 7 of the Civil Procedure Act whose import in pari materia in certain cases in realm of criminal law is applicable in the same vein. The essential elements are that: “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. 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. 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. 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. Explanation —(4)Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation —(5)Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation —(6)Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” (See also John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021).
5.Essentially, res judicata in criminal cases, often applied as issue estoppel or autrefois acquit/convict, prevents the re-litigation of issues or charges already decided by a final judgment on the merits. It ensures legal certainty, protects against double jeopardy, and bars subsequent prosecution if the same parties and cause are involved. The key aspects of res judicata in criminal law include:
i. Finality: The doctrine applies only to final decisions, meaning no further appeals are pending.
ii. Issue Estoppel: If a specific issue of fact or law was directly determined in a previous proceeding, it cannot be contested again, even if the charge is different.
iii. Autrefois Acquit/Convict: A person cannot be tried again for the same offense if they were previously acquitted or convicted of it.
iv. Exceptions: Res judicata does not apply if the original judgment was obtained through fraud or if the subsequent proceeding is a legitimate appeal.
v. Scope: While rooted in civil law, it applies to criminal law to prevent harassment and maintain consistency in judicial decisions.
6.What this means the doctrine reduced to its simplest terms means a matter judicially acted upon or decided; an issue settled by judgment in providing that a matter judicially settled stays settled its purposes are the reduction of court congestion by eliminating disputes already resolved, and the protection of litigants from the expense and harassment of repeated lawsuits. It is definitely therefore a valid defence in our criminal law but somewhat has been overshadowed by the more famous principle of double jeopardy.”
[...truncated]
2. The applicant is indefatigable as well as vexatious. Dominic Malonza Mulwa, and 2 others were charged with Robbery with Violence contrary to Section 296(2) of the Penal Code in Kitui Principal Magistrate’s Court Criminal Case No. 724 of 2011 by Hon. E. Boke (PM) on 22.09.16. The Particulars of the offence were that on the 22nd day of October, 2011 at about 6.00 a.m. at Kitui Township Location in Kitui County, jointly with others not before Court while armed with a dangerous weapon namely pistol robbed Jackson Muchemi Kitonyo of one leather briefcase containing unknown amount of money and at or immediately before or immediately after the time of such robbery killed the said Jackson Muchemi Kitonyo.
3. He was tried and rightly sentenced to death, a sentence he well deserved. He appealed to this court vide Criminal Appeal No. 60 of 2016. The High Court, relying on Muruatetu 1, reduced the death sentence to 20 years, taking into account 5 years he had spent in custody. In making the decision reported as Dominic Malonza Mulwa & 2 others v Republic [2019] KEHC 5010 (KLR) , Mutende J, stated as follows:
“35. This was an offence that was planned prior to being committed. The conduct of each Appellant was explained by witnesses who testified. Each one of them took part as a perpetrator of the offence therefore the common intention was proved.
36. From the foregoing, even if there was no direct evidence as to the individuals who took away the briefcase that contained money which was in possession of the Deceased which became possible as a result of the violence that was occasioned on his person resulting in his death, circumstantial evidence adduced unerringly pointed towards the Appellants as persons who committed the offence. Therefore, there was no misdirection on the part of the learned Magistrate when she returned a verdict of guilty and convicted the three Appellants. The Appeal against the conviction therefore fails and is dismissed.
37. With regard to the sentence imposed, in Petition No. 15 of 2016 Francis Kairoko Muruatetu and Another vs. Republic (2017) eKLR the Supreme Court held that the mandatory death sentence is unconstitutional. The Appellants were given the opportunity to mitigate. It was stated on their part that they maintained their innocence but the Court was called upon to consider the fact of their age, as they were young men with young families and old parents who depend on them as their source of protection.
38. I do take into consideration the nature of the offence and circumstances in which it was committed. Life was lost following the attack by a dangerous weapon. I note that the Appellants were in custody for five (5) years prior to being sentenced which I take into consideration.
39. Therefore, I set aside the death sentence imposed and re-sentence each Appellant to twenty (20) years imprisonment to be effective from the date of sentencing by the trial Court.”
4. The Court relied on the decision of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) , where the Supreme Court (DK Maraga, PM Mwilu, JB Ojwang, SC Wanjala, N Ndungu, I Lenaola] held as follows:
“The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution .”
5. Subsequent to this decision, the Supreme Court[ MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, I Lenaola, N Ndungu, W Ouko]made further clarifications as follows in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) :
“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution . It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.
15.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code , that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.
Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below us as follows:
i. The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code ;”
6. Thereafter, the applicant embarked on a filing spree. He filed Criminal Appeal No. 30 of 2019 in this court. It was an appeal to the High Court challenging Justice Mutende’s decision. It met its Waterloo before Limo J on 25.05.2021. He also filed Misc Application No. 43 of 2019, which was struck out by Limo J on 25.05.2021. He further filed Misc Application No. E001 of 2022, which was struck out by Limo J on 23.02.2023.
7. He did not relent. He subsequently filed Miscellaneous Application No. E081 of 2021 seeking the following orders:
a. THAT the petitioner herein was charged in Criminal Case No. 724 of 2011 at Kitui Law Court or he offence of Robbery with violence contrary to section 296(2) of the Penal Code, tried upon the charge found guilty hence convicted and sentenced to DEATH.
b. THAT, the petitioner after conviction and sentence appealed against both in the High Court Kitui vide HCCRA No. 60 of 2016 whereby the DEATH sentence was set aside and substituted with a 20 years’ term of imprisonment.
c. THAT the petitioner in this regard seeks court intervention in sentence computation only in compliance with Section 333(2) of the Criminal Procedure Code.
d. THAT the court be pleased to note that my co-accused persons were acquitted by Kitui High Court on 18 th June 2025 on Petition No. E063 of 2024.
8. That application was struck out by Riechi J on 11.06.2026, who stated as follows:
10. That from the Judgment the Judge after considering all the factors, including the time in remand custody reduced the sentence to 20 years imprisonment and specifically stated that the period of imprisonment will run from date of conviction in the Magistrate’s court.
11. From the Judgment it is clear to this court that the Hon. Judge took into account the period in remand when she sentenced the applicant and his co-appellants to 20 years imprisonment. I find no merit in this application, which is hereby dismissed. The applicant to serve his sentence as per order of Mutende J.
Dated, signed and delivered at Kitui this 11 th day of June 2026.”
9. Seven days later, he filed the present application, seeking the following orders:
a. spent
b. That the honourable Court be pleased to give orders for a twenty-year sentence imposed on me to commence from the date of arrest as stipulated in section 333(2) of the criminal procedure code as read with section 362 and paragraphs 2.3.15(ii)(iv)(vi) of the sentencing policy guidelines, article 22(1),23(3)(f), 25(c ), 27, 28, 47(1), 165(3)(3) of the constitution.
c. Na
d. NA
10. All the applications turn on a single question, namely, the application of section 333(2) of the Criminal Procedure Code. The section provides as follows:
“(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.
(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
11. The operative words are that, where the accused has been held in custody, the sentence shall take account of the period spent in custody. In this matter, the High Court found that the applicant was in custody for 5 years. The 5 years in custody were taken into account after the death penalty was set aside and replaced with 20 years' imprisonment. In all four cases subsequent to appeal number 60 of 2016, the High Court pronounced itself functus officio.
12. Two issues arose, namely whether the court is functus officio and whether it has jurisdiction to revise the sentence imposed by the High Court and dealt with in 4 other matters by this court. The High Court's revisionary powers are set out in section 362 of the Criminal Procedure Code as follows:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
13. What the High Court can do under its revision jurisdiction is set out in Section 364 of the Criminal Procedure Code, which provides as follows:
(1) in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –
(a)In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;
(b)In the case of any other order than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudiced of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence. Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a Subordinate Court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. (5)When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”
14. The proceedings herein do not arise from a decision of the subordinate court but from that of the High Court. This court dealt with this issue. In fact, in Misc E081 of 2021, this court decided the same subject matter. In effect, this court, vis-à-vis the sentence, is now functus officio.
15. This court cannot, by craft or innovation, revise the decisions of 4 other High Courts on the same issue. In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court stated:
“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
16. The court cannot, by any stretch of the imagination, surmise, hyperbole or conjecture, develop or usurp jurisdiction where there is none. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as he then was, stated as follows:
“With that, I return to the issue of jurisdiction and to the words of Section 20(2)(m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said that this is consistent with authority: “By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.”
17. The revisionary power of this court also serves a supervisory function, and the court is empowered by Article 165(6) of the Constitution to review a decision of a subordinate court. The relevant provision reads as follows:
“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”
18. There is no decision of the subordinate court to be revised. The High Court delivered the last decision on sentence. This court cannot purport to address whether the sentence can be revised. The question of functus officio also arises. The court cannot supervise a superior court.
19. The question was addressed by Thande, J, in the case of Mureithi v Republic [2025] KEHC 3519 (KLR) , as follows:
“4. At the very outset, this Court must determine whether it has jurisdiction to entertain the Application before it. The law is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution , statute or both. This was succinctly stated by the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, as follows : A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.
5.This Court derives its jurisdiction principally from Article 165(3) of the Constitution which confers upon it unlimited original jurisdiction in criminal and civil matters. The provision clearly delineates and demarcates what the Court can and cannot do. The jurisdiction of this Court includes supervisory powers. By dint of Article 165(6) however, this Court cannot supervise superior courts. It provides:
The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
6.The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution , which provides:
The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
7. The Petitioner was convicted and sentenced by this Court. Additionally, the Applicant unsuccessfully appealed to the Court of Appeal, which upheld both the conviction and sentence. What he now seeks is that this Court reviews its own decision and that of the Court of Appeal. While this Court has wide unlimited jurisdiction under Article 165 of the Constitution , it does not have jurisdiction over a superior court.”
20. The next question concerns functus officio. This was addressed in the case of Murgani v Kenya Revenue Authority (Civil Application 4 of 2014) [2014] KESC 2 (KLR) (19 December 2014) (Ruling), in which the Supreme Court [PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] stated as follows:
“It is a general principle of law that a Court after passing Judgment becomes functus officio and cannot revisit the Judgment on the merits, or purport to exercise a judicial power over the same matter, save as provided by law. In Lakhamshi Brothers v. Raja & Sons [1966] EA 313 the then Court of Appeal held as follows:
“This court is now the final Court of Appeal and when this court delivers its judgement, that judgement is, so far as the particular proceedings are concerned, the end of the litigation. It determines in respect of the parties to the particular proceedings their final legal position, subject as I have said to the limited application of the slip rule.”
21. Functus officio was also addressed in the case of Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Limited) v Telkom Kenya Limited (Motion 24 of 2014) [2014] KESC 7 (KLR) (25 November 2014) (Ruling), where the Court of Appeal [EM Githinji, W Karanja & Po Kiage, JJA] held as follows:
“21. Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognised in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);
22.The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
23. Where there had been a slip in drawing it up, and where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”
The Supreme Court in Raila Odinga v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
24. The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions, and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;”
22. The Supreme Court decision in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR), [WM Mutunga, CJ & P, KH Rawal, DCJ & VP, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] set out the following position on res judicata.
“18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “ The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law ,” (2005) 122 SALJ 832, has thus explicated this concept:
‘The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.
19. This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”
23. The High Court decided the matter on appeal. The powers of this court in relation to the lower court matter were exhausted. The court's decisional powers were exhausted, and it became functus officio. Consequently, the court has no jurisdiction to hear this matter.
24. Secondly, this point was decided three times by Limo J, once by Mutende J and once by Riechi J. This means that the question of section 333(2) is res judicata. There must be an end to litigation. In essence, therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those previously in dispute between the same parties, and the same must have been determined on the merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378 observed thus:
“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
25. The question of res judicata was discussed at length by R Nyakundi J in the case of Samoei v Republic [2026] KEHC 1067 (KLR), as follows:
“The Applicant is seeking leave of this court to have a second bite of the cherry on the same issues which have been addressed by this very same court therefore rendering the entire motion res judicata . This doctrine although more pronounced and applicable in the realm of Civil Law it is also applicable in the branch of criminal law if the facts meets the threshold under Section 7 of the Civil Procedure Act . The Supreme Court in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another , motion No. 42 of 2014 [2016] eKLR state as follows:“ res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights…. res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept….”
4.This issue was also discussed further in Haslbury’s Laws of England , Paragraph 1174. However, of importance to this discussion is the wording of Section 7 of the Civil Procedure Act whose import in pari materia in certain cases in realm of criminal law is applicable in the same vein. The essential elements are that: “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. 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. 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. 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. Explanation —(4)Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation —(5)Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation —(6)Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” (See also John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021).
5.Essentially, res judicata in criminal cases, often applied as issue estoppel or autrefois acquit/convict, prevents the re-litigation of issues or charges already decided by a final judgment on the merits. It ensures legal certainty, protects against double jeopardy, and bars subsequent prosecution if the same parties and cause are involved. The key aspects of res judicata in criminal law include:
i. Finality: The doctrine applies only to final decisions, meaning no further appeals are pending.
ii. Issue Estoppel: If a specific issue of fact or law was directly determined in a previous proceeding, it cannot be contested again, even if the charge is different.
iii. Autrefois Acquit/Convict: A person cannot be tried again for the same offense if they were previously acquitted or convicted of it.
iv. Exceptions: Res judicata does not apply if the original judgment was obtained through fraud or if the subsequent proceeding is a legitimate appeal.
v. Scope: While rooted in civil law, it applies to criminal law to prevent harassment and maintain consistency in judicial decisions.
6.What this means the doctrine reduced to its simplest terms means a matter judicially acted upon or decided; an issue settled by judgment in providing that a matter judicially settled stays settled its purposes are the reduction of court congestion by eliminating disputes already resolved, and the protection of litigants from the expense and harassment of repeated lawsuits. It is definitely therefore a valid defence in our criminal law but somewhat has been overshadowed by the more famous principle of double jeopardy.”
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