1. The applicant has approached this court through a Notice of Motion application brought under Articles 28, 53, and 165 (6) and (7) of the Constitution, as well as sections 362 and 364 of the Criminal Procedure Code. In the application, the applicant seeks a review of the sentence imposed in Criminal Case No. E229 of 2023, urging this court to consider substituting the custodial sentence with an alternative, including a non-custodial sentence.
2. The application is premised on the grounds set out on its face and is further supported by an affidavit sworn by the applicant. He avers that he pleaded guilty to the charges and was consequently sentenced to serve a term of five years’ imprisonment. He contends that the conditions in prison are harsh and have led to a deterioration of his health, thereby rendering his continued incarceration excessively punitive and inhumane. The applicant emphasizes that he suffers from HIV, diabetes, and tuberculosis, all of which require specialized medical attention that is difficult to access within the prison environment. On this basis, he urges the court to take into account his deteriorating health and review the sentence accordingly.
3. In support of his plea, the applicant relies on several provisions of the Sentencing Guidelines, arguing that they provide a basis upon which the court may exercise discretion to reduce the sentence or impose a non-custodial alternative.
4. The application, however, is opposed. The respondent points out that the applicant had previously lodged an appeal before the High Court vide Criminal Appeal No. E080 of 2024, wherein the appellate court considered the legality and propriety of the sentence. The High Court, after full consideration, held that the sentence was lawful, neither harsh nor excessive, and consequently dismissed the appeal. The respondent therefore argues that the present application amounts to an abuse of the court process and should be outrightly dismissed as the court is functus officio.
5. It is not disputed that the applicant is attempting to re-litigate issues that have already been canvassed and determined. Indeed, in High Court Criminal Appeal No. E080 of 2024, judgment was delivered on 31st July 2025. One of the central issues before the appellate court was whether the sentence should be set aside or varied. The court, after careful analysis, concluded that the sentence was proper in law and proportionate to the offence, and thus affirmed it.
6. In light of the foregoing, it is evident that a court of concurrent jurisdiction has already pronounced itself on the very issues now raised before this court. The critical question that arises, therefore, is whether this court is functus officio—that is, whether it has exhausted its jurisdiction in relation to the matter and is consequently barred from revisiting or re-opening issues that have already been conclusively determined.
7. It is not in dispute that the applicant is attempting to have a second bite at the cherry having previously appealed against the conviction and sentence vide High Court Criminal Appeal No E080 of 2024. In this appeal judgment was delivered on the 31st July 2025. In this judgment one of the issues for determination by the appellate court was whether the sentence should be set aside. The court then proceeded to find that the sentenced imposed was neither harsh nor excessive and affirmed the same.
8. The present application therefore raises issues that have already been conclusively determined by a court of concurrent jurisdiction. The doctrine of functus officio dictates that once a court has rendered a final decision on a matter, it cannot revisit or re-open the same issues except in very limited circumstances provided by law. To entertain this application would amount to granting the applicant a “second bite at the cherry,” thereby undermining the principle of finality in litigation and encouraging abuse of the court process.
9. Moreover, section 362 of the Criminal Procedure Code empowers this court to review proceedings of subordinate courts to ensure correctness, legality, and propriety. However, this supervisory jurisdiction cannot be invoked to circumvent or overturn a decision already rendered by the appellate court. The applicant’s reliance on sentencing guidelines does not alter this position, as those arguments were available to him at the appellate stage and were in fact considered.
10. In the circumstances, this court finds that the application is misconceived, res judicata, and an abuse of the court process. This Court cannot sit to review a judgment or decision of another judge of concurrent jurisdiction. The applicant’s recourse lies in the Court of Appeal on a second appeal. Secondly and in the alternative, the matters raised in this application could be raised in a Petition to the president under Article 133 of the Constitution as well as under the Power of Mercy Act. (See the case of Sianyo Atembe versus Republic (Criminal Revision 194 of 2023) (2023) KEHC 26456 (KLR) 5th December 2023 Ruling).
11. Having found that the court has no jurisdiction as it is functus officio, then it must immediately drop its tools. In the end, the Application is found to be without merit and the same is dismissed.
Dated, signed and delivered at Machakos this 11th day of December, 2025.
2. The application is premised on the grounds set out on its face and is further supported by an affidavit sworn by the applicant. He avers that he pleaded guilty to the charges and was consequently sentenced to serve a term of five years’ imprisonment. He contends that the conditions in prison are harsh and have led to a deterioration of his health, thereby rendering his continued incarceration excessively punitive and inhumane. The applicant emphasizes that he suffers from HIV, diabetes, and tuberculosis, all of which require specialized medical attention that is difficult to access within the prison environment. On this basis, he urges the court to take into account his deteriorating health and review the sentence accordingly.
3. In support of his plea, the applicant relies on several provisions of the Sentencing Guidelines, arguing that they provide a basis upon which the court may exercise discretion to reduce the sentence or impose a non-custodial alternative.
4. The application, however, is opposed. The respondent points out that the applicant had previously lodged an appeal before the High Court vide Criminal Appeal No. E080 of 2024, wherein the appellate court considered the legality and propriety of the sentence. The High Court, after full consideration, held that the sentence was lawful, neither harsh nor excessive, and consequently dismissed the appeal. The respondent therefore argues that the present application amounts to an abuse of the court process and should be outrightly dismissed as the court is functus officio.
5. It is not disputed that the applicant is attempting to re-litigate issues that have already been canvassed and determined. Indeed, in High Court Criminal Appeal No. E080 of 2024, judgment was delivered on 31st July 2025. One of the central issues before the appellate court was whether the sentence should be set aside or varied. The court, after careful analysis, concluded that the sentence was proper in law and proportionate to the offence, and thus affirmed it.
6. In light of the foregoing, it is evident that a court of concurrent jurisdiction has already pronounced itself on the very issues now raised before this court. The critical question that arises, therefore, is whether this court is functus officio—that is, whether it has exhausted its jurisdiction in relation to the matter and is consequently barred from revisiting or re-opening issues that have already been conclusively determined.
7. It is not in dispute that the applicant is attempting to have a second bite at the cherry having previously appealed against the conviction and sentence vide High Court Criminal Appeal No E080 of 2024. In this appeal judgment was delivered on the 31st July 2025. In this judgment one of the issues for determination by the appellate court was whether the sentence should be set aside. The court then proceeded to find that the sentenced imposed was neither harsh nor excessive and affirmed the same.
8. The present application therefore raises issues that have already been conclusively determined by a court of concurrent jurisdiction. The doctrine of functus officio dictates that once a court has rendered a final decision on a matter, it cannot revisit or re-open the same issues except in very limited circumstances provided by law. To entertain this application would amount to granting the applicant a “second bite at the cherry,” thereby undermining the principle of finality in litigation and encouraging abuse of the court process.
9. Moreover, section 362 of the Criminal Procedure Code empowers this court to review proceedings of subordinate courts to ensure correctness, legality, and propriety. However, this supervisory jurisdiction cannot be invoked to circumvent or overturn a decision already rendered by the appellate court. The applicant’s reliance on sentencing guidelines does not alter this position, as those arguments were available to him at the appellate stage and were in fact considered.
10. In the circumstances, this court finds that the application is misconceived, res judicata, and an abuse of the court process. This Court cannot sit to review a judgment or decision of another judge of concurrent jurisdiction. The applicant’s recourse lies in the Court of Appeal on a second appeal. Secondly and in the alternative, the matters raised in this application could be raised in a Petition to the president under Article 133 of the Constitution as well as under the Power of Mercy Act. (See the case of Sianyo Atembe versus Republic (Criminal Revision 194 of 2023) (2023) KEHC 26456 (KLR) 5th December 2023 Ruling).
11. Having found that the court has no jurisdiction as it is functus officio, then it must immediately drop its tools. In the end, the Application is found to be without merit and the same is dismissed.
Dated, signed and delivered at Machakos this 11th day of December, 2025.