1. The Applicant, George Morara Oroko, moved this Court by an undated Notice of Motion seeking substitution of the remaining part of his custodial sentence with a non-custodial sentence, including probation. The application is expressed to be brought under Sections 327 and 346 of the Criminal Procedure Code.
2. The application is supported by the Supporting Affidavit of the Applicant sworn on 10th February 2026 in which he deposes that he was charged with the offence of rape contrary to Section 3(1) as read with Section 3(3) of the Sexual Offences Act in Nyamira CM’s Criminal Case No. E004 of 2021 and was upon conviction sentenced to ten (10) years imprisonment.
3. The Applicant further deposes that he appealed against the sentence in Nyamira HCCR Appeal E015 of 2024, but the appeal was dismissed and the sentence of ten years imprisonment upheld.
4. The Applicant states that he has served approximately two-thirds of the sentence and has engaged in various rehabilitation programmes while in custody, including carpentry training. On that basis he urges the Court to substitute the remaining portion of the sentence with a non-custodial sentence, including probation.
5. The application was opposed by the Respondent and it was submitted that the Court is functus officio, having already determined the appeal on sentence.
6. There is no doubt that a request to be placed on probation is, in substance and in law, a request for resentencing.
7. The jurisdiction of this Court to interfere with sentence is circumscribed. Where a sentence is lawful and imposed in accordance with statute, the Court has no general power to re-sentence an offender merely because circumstances have changed or rehabilitation is alleged.
8. That Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), emphasized the lawfulness of mandatory sentences prescribed by statute and underscored that courts are bound to give effect to legislative sentencing frameworks unless the same are successfully impugned on constitutional grounds.
9. In the present case, this Court has already determined the issue of sentence, where the ten-year term imposed by the trial court was affirmed as lawful within the framework of Section 3(3) of the Sexual Offences Act, save only for computation of the sentence in accordance with Section 333(2) of the Criminal Procedure Code.
10. Having already pronounced itself on the legality of the sentence on appeal, this Court is functus officio and lacks jurisdiction to reopen the sentencing question through the present application.
11. Accordingly, the undated Notice of Motion seeking substitution of the remaining part of the custodial sentence with a non-custodial sentence is without merit and it is therefore dismissed.
2. The application is supported by the Supporting Affidavit of the Applicant sworn on 10th February 2026 in which he deposes that he was charged with the offence of rape contrary to Section 3(1) as read with Section 3(3) of the Sexual Offences Act in Nyamira CM’s Criminal Case No. E004 of 2021 and was upon conviction sentenced to ten (10) years imprisonment.
3. The Applicant further deposes that he appealed against the sentence in Nyamira HCCR Appeal E015 of 2024, but the appeal was dismissed and the sentence of ten years imprisonment upheld.
4. The Applicant states that he has served approximately two-thirds of the sentence and has engaged in various rehabilitation programmes while in custody, including carpentry training. On that basis he urges the Court to substitute the remaining portion of the sentence with a non-custodial sentence, including probation.
5. The application was opposed by the Respondent and it was submitted that the Court is functus officio, having already determined the appeal on sentence.
6. There is no doubt that a request to be placed on probation is, in substance and in law, a request for resentencing.
7. The jurisdiction of this Court to interfere with sentence is circumscribed. Where a sentence is lawful and imposed in accordance with statute, the Court has no general power to re-sentence an offender merely because circumstances have changed or rehabilitation is alleged.
8. That Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), emphasized the lawfulness of mandatory sentences prescribed by statute and underscored that courts are bound to give effect to legislative sentencing frameworks unless the same are successfully impugned on constitutional grounds.
9. In the present case, this Court has already determined the issue of sentence, where the ten-year term imposed by the trial court was affirmed as lawful within the framework of Section 3(3) of the Sexual Offences Act, save only for computation of the sentence in accordance with Section 333(2) of the Criminal Procedure Code.
10. Having already pronounced itself on the legality of the sentence on appeal, this Court is functus officio and lacks jurisdiction to reopen the sentencing question through the present application.
11. Accordingly, the undated Notice of Motion seeking substitution of the remaining part of the custodial sentence with a non-custodial sentence is without merit and it is therefore dismissed.