1. By the Notice of Motion dated 16th April 2026, brought under sections 216, 329 and 333(2) of the Criminal Procedure Code, paragraph 3.3 of the Sentencing Policy Guidelines and Articles 22, 23, 25(c), 27, 28, 50(2)(q), 50(2)(p) and 159(2)(a), (b), (d) of the Constitution. The Applicant seeks orders that this Court reviews his sentence by reducing it, suspending it or substituting it with a non-custodial sentence.
2. The application is founded on the grounds that the Applicant is seventy-five (75) years old; that he has undergone rehabilitation, reformation and social re-adaptation and is remorseful; that he relies on recent Court of Appeal decisions on sentence review and the Sentencing Policy Guidelines; that he is entitled to a discount on account of his plea of guilty; and that the life sentence imposed upon him is unconstitutional. The application is supported by the Applicant's affidavit sworn on the same date.
3. The record shows that the Applicant was convicted by the Senior Resident Magistrate's Court at Keroka in Criminal Case No. 408 of 2014 upon his plea of guilty to the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment.
4. Dissatisfied with that decision, he lodged an appeal before this Court in James Nyangau Nyabweche v Republic [2015] KEHC 249 (KLR) which appeal was dismissed and the conviction and sentence upheld.
5. Aggrieved by the dismissal, the Applicant preferred a second appeal to in Nyangau v Republic [2025] KECA 1779 (KLR) which was equally dismissed and the conviction and sentence upheld. Indeed, in the supporting affidavit to the present application, he expressly acknowledges that he exhausted all his avenues of appeal before returning to this Court seeking a review of sentence.
6. The question that immediately arises is whether this Court retains jurisdiction to reopen the question of sentence. The answer is in the negative. In Lusaka v Republic [2023] KECA 1071 (KLR), the Court of Appeal held that once a court has heard and finally determined an appeal, it becomes functus officio and lacks jurisdiction to reopen the merits of its decision except in the limited circumstances permitted by law.
7. The present application falls squarely within that principle. This Court exhausted its appellate jurisdiction when it determined the Applicant's appeal. Thereafter, the Court of Appeal exercised its own appellate jurisdiction over the same conviction and sentence. This Court cannot now reopen the question of sentence without offending the doctrine of functus officio and the principle of finality of litigation.
8. I therefore find that this Court lacks jurisdiction to entertain the Notice of Motion dated 16th April 2026. The application is incompetent and is hereby dismissed.
2. The application is founded on the grounds that the Applicant is seventy-five (75) years old; that he has undergone rehabilitation, reformation and social re-adaptation and is remorseful; that he relies on recent Court of Appeal decisions on sentence review and the Sentencing Policy Guidelines; that he is entitled to a discount on account of his plea of guilty; and that the life sentence imposed upon him is unconstitutional. The application is supported by the Applicant's affidavit sworn on the same date.
3. The record shows that the Applicant was convicted by the Senior Resident Magistrate's Court at Keroka in Criminal Case No. 408 of 2014 upon his plea of guilty to the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment.
4. Dissatisfied with that decision, he lodged an appeal before this Court in James Nyangau Nyabweche v Republic [2015] KEHC 249 (KLR) which appeal was dismissed and the conviction and sentence upheld.
5. Aggrieved by the dismissal, the Applicant preferred a second appeal to in Nyangau v Republic [2025] KECA 1779 (KLR) which was equally dismissed and the conviction and sentence upheld. Indeed, in the supporting affidavit to the present application, he expressly acknowledges that he exhausted all his avenues of appeal before returning to this Court seeking a review of sentence.
6. The question that immediately arises is whether this Court retains jurisdiction to reopen the question of sentence. The answer is in the negative. In Lusaka v Republic [2023] KECA 1071 (KLR), the Court of Appeal held that once a court has heard and finally determined an appeal, it becomes functus officio and lacks jurisdiction to reopen the merits of its decision except in the limited circumstances permitted by law.
7. The present application falls squarely within that principle. This Court exhausted its appellate jurisdiction when it determined the Applicant's appeal. Thereafter, the Court of Appeal exercised its own appellate jurisdiction over the same conviction and sentence. This Court cannot now reopen the question of sentence without offending the doctrine of functus officio and the principle of finality of litigation.
8. I therefore find that this Court lacks jurisdiction to entertain the Notice of Motion dated 16th April 2026. The application is incompetent and is hereby dismissed.