1. The Applicants were charged in Republic v James Okara Karaya & 2 others [2019] KEHC 5406 (KLR) with murder contrary to Section 203 as read with Section 204 of the Penal Code in and were convicted and on 29th July 2019, sentenced to thirty years’ imprisonment. They appealed against the conviction and sentence in Karaya & 2 others v Republic [2025] KECA 1771 (KLR) before the Court of Appeal at Kisumu. The appeal was dismissed on 24th October 2025, with the result that the conviction and sentence remained undisturbed.
2. The Applicants have now moved this Court by the Notice of Motion dated 21st April 2026 seeking, among other orders, that the period spent in custody be taken into account pursuant to Section 333(2) of the Criminal Procedure Code and that the thirty-year sentence be reduced on the basis of their mitigation, rehabilitation and the fact that the offence arose from the same transaction.
3. The issue is whether this Court can reopen the sentence after it has been subjected to and left undisturbed on appeal. In Lusaka v Republic [2023] KECA 1071 (KLR), the Court of Appeal considered a similar application for review of sentence following the determination of an appeal and held that the court, having finally determined the appeal against sentence, was functus officio and lacked jurisdiction to review its decision.
4. The position is no different here. The Applicants had an opportunity to challenge the sentence before the Court of Appeal, and that Court finally determined the matter by dismissing the appeal. What is now presented as an application for credit for time spent in custody and reduction of sentence would, in substance, require this Court to revisit the sentence which formed part of the concluded appellate proceedings.
5. The Applicants have not alleged that the sentence is illegal or that there is an accidental or clerical error requiring correction, and their reliance on subsequent rehabilitation, mitigation and the period spent in custody cannot by itself confer jurisdiction upon this Court to reopen the matter.
6. In the circumstances, the finality attaching to the appellate determination must be respected. This Court is functus officio in relation to the sentence and cannot assume jurisdiction to reconsider or vary it.
7. The Notice of Motion dated 21st April 2026 is accordingly dismissed for want of jurisdiction.
DELIVERED AT NYAMIRA THIS 22nd DAY OF September 2026
2. The Applicants have now moved this Court by the Notice of Motion dated 21st April 2026 seeking, among other orders, that the period spent in custody be taken into account pursuant to Section 333(2) of the Criminal Procedure Code and that the thirty-year sentence be reduced on the basis of their mitigation, rehabilitation and the fact that the offence arose from the same transaction.
3. The issue is whether this Court can reopen the sentence after it has been subjected to and left undisturbed on appeal. In Lusaka v Republic [2023] KECA 1071 (KLR), the Court of Appeal considered a similar application for review of sentence following the determination of an appeal and held that the court, having finally determined the appeal against sentence, was functus officio and lacked jurisdiction to review its decision.
4. The position is no different here. The Applicants had an opportunity to challenge the sentence before the Court of Appeal, and that Court finally determined the matter by dismissing the appeal. What is now presented as an application for credit for time spent in custody and reduction of sentence would, in substance, require this Court to revisit the sentence which formed part of the concluded appellate proceedings.
5. The Applicants have not alleged that the sentence is illegal or that there is an accidental or clerical error requiring correction, and their reliance on subsequent rehabilitation, mitigation and the period spent in custody cannot by itself confer jurisdiction upon this Court to reopen the matter.
6. In the circumstances, the finality attaching to the appellate determination must be respected. This Court is functus officio in relation to the sentence and cannot assume jurisdiction to reconsider or vary it.
7. The Notice of Motion dated 21st April 2026 is accordingly dismissed for want of jurisdiction.
DELIVERED AT NYAMIRA THIS 22nd DAY OF September 2026