1. The Applicants, Edwin Gikira Oberi and Josephine Nyaera Oberi, the 1st and 2nd accused respectively were charged with murder in Republic v Edwin Gikira Oberi & another [2019] KEHC 5469 (KLR). The Applicants were each sentenced to thirty (30) years' imprisonment on 25th day of July 2019.
2. The Applicants thereafter exercised their right of appeal to the Court of Appeal in Oberi & another v Republic [2026] KECA 195 (KLR). The Court of Appeal 30th January, 2026 dismissed the appeal on both conviction and sentence and affirmed the thirty (30) years' imprisonment imposed by the High Court.
3. The Applicants have now returned to this Court through a Notice of Motion dated 9th March 2026, seeking, in substance, a rehearing and reconsideration of their sentence. The application invokes Articles 22(1), 23(1), 25(c), 27, 50(2)(p), 159(2) and 165(3) of the Constitution and Section 333(2) of the Criminal Procedure Code. In his supporting affidavit, the 1st Applicant states that he has spent approximately nine years behind bars, that his health has deteriorated and that he has undertaken rehabilitative and reformative programmes in prison. The 2nd Applicant similarly states that she has spent approximately nine years in custody. Both Applicants seek the intervention of this Court in relation to their sentence.
4. The question before the Court is whether, having considered and determined the Applicants’ appeal against conviction and sentence, this Court can properly reopen and reconsider the sentence. In Lusaka v Republic [2023] KECA 1071 (KLR) the Court of Appeal considered an application by an applicant whose sentence had already been determined on appeal and who subsequently sought, among other reliefs, review of the remaining sentence and consideration of the period spent in custody under Section 333(2) of the Criminal Procedure Code. The Court held that once a matter has been finally determined, the court becomes functus officio and cannot revisit the merits of its decision except as permitted by law; where the sentence has already been considered on appeal and there is no claim that it is illegal, the court lacks jurisdiction to reopen and review it.
5. The principle applies to the present case because the Applicants did not merely leave the sentence unchallenged. They appealed to the Court of Appeal, and the 1st Applicant specifically pursued review of his sentence on the basis of his personal circumstances, rehabilitation, reform, remorse and the alleged harshness of the thirty-year term. The Court of Appeal considered those matters and found no basis to interfere with the sentence, ultimately dismissing the appeal and affirming the conviction and sentence.
6. The sentence has therefore already been subjected to appellate scrutiny and affirmed by the Court of Appeal. This Court cannot now undertake a further sentencing exercise or substitute its own determination for that of the Court of Appeal, as doing so would in substance amount to exercising appellate jurisdiction over a decision of a superior court.
7. The Applicants’ reliance upon Article 165(3), Article 50(2)(p) of the Constitution and Section 333(2) of the Criminal Procedure Code does not alter that position. No change in the prescribed punishment has been demonstrated, nor has it been alleged that the sentence is illegal or that the judgment contains a clerical or arithmetic error requiring correction. The Applicants’ period in custody and their rehabilitation are noted, but those matters cannot confer jurisdiction upon this Court to reopen a sentence which has already been considered and affirmed on appeal.
8. In the circumstances, I find that this Court is functus officio in respect of the sentence imposed upon the Applicants and consequently lacks jurisdiction to entertain the present application for re-sentencing.
9. For those reasons, the Notice of Motion dated 9th March 2026 is dismissed for want of jurisdiction, this Court being functus officio in respect of the sentence which was considered and affirmed by the Court of Appeal.
DELIVERED AT NYAMIRA THIS 22nd DAY OF September 2026
2. The Applicants thereafter exercised their right of appeal to the Court of Appeal in Oberi & another v Republic [2026] KECA 195 (KLR). The Court of Appeal 30th January, 2026 dismissed the appeal on both conviction and sentence and affirmed the thirty (30) years' imprisonment imposed by the High Court.
3. The Applicants have now returned to this Court through a Notice of Motion dated 9th March 2026, seeking, in substance, a rehearing and reconsideration of their sentence. The application invokes Articles 22(1), 23(1), 25(c), 27, 50(2)(p), 159(2) and 165(3) of the Constitution and Section 333(2) of the Criminal Procedure Code. In his supporting affidavit, the 1st Applicant states that he has spent approximately nine years behind bars, that his health has deteriorated and that he has undertaken rehabilitative and reformative programmes in prison. The 2nd Applicant similarly states that she has spent approximately nine years in custody. Both Applicants seek the intervention of this Court in relation to their sentence.
4. The question before the Court is whether, having considered and determined the Applicants’ appeal against conviction and sentence, this Court can properly reopen and reconsider the sentence. In Lusaka v Republic [2023] KECA 1071 (KLR) the Court of Appeal considered an application by an applicant whose sentence had already been determined on appeal and who subsequently sought, among other reliefs, review of the remaining sentence and consideration of the period spent in custody under Section 333(2) of the Criminal Procedure Code. The Court held that once a matter has been finally determined, the court becomes functus officio and cannot revisit the merits of its decision except as permitted by law; where the sentence has already been considered on appeal and there is no claim that it is illegal, the court lacks jurisdiction to reopen and review it.
5. The principle applies to the present case because the Applicants did not merely leave the sentence unchallenged. They appealed to the Court of Appeal, and the 1st Applicant specifically pursued review of his sentence on the basis of his personal circumstances, rehabilitation, reform, remorse and the alleged harshness of the thirty-year term. The Court of Appeal considered those matters and found no basis to interfere with the sentence, ultimately dismissing the appeal and affirming the conviction and sentence.
6. The sentence has therefore already been subjected to appellate scrutiny and affirmed by the Court of Appeal. This Court cannot now undertake a further sentencing exercise or substitute its own determination for that of the Court of Appeal, as doing so would in substance amount to exercising appellate jurisdiction over a decision of a superior court.
7. The Applicants’ reliance upon Article 165(3), Article 50(2)(p) of the Constitution and Section 333(2) of the Criminal Procedure Code does not alter that position. No change in the prescribed punishment has been demonstrated, nor has it been alleged that the sentence is illegal or that the judgment contains a clerical or arithmetic error requiring correction. The Applicants’ period in custody and their rehabilitation are noted, but those matters cannot confer jurisdiction upon this Court to reopen a sentence which has already been considered and affirmed on appeal.
8. In the circumstances, I find that this Court is functus officio in respect of the sentence imposed upon the Applicants and consequently lacks jurisdiction to entertain the present application for re-sentencing.
9. For those reasons, the Notice of Motion dated 9th March 2026 is dismissed for want of jurisdiction, this Court being functus officio in respect of the sentence which was considered and affirmed by the Court of Appeal.
DELIVERED AT NYAMIRA THIS 22nd DAY OF September 2026