REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC APP NO. E064 OF 2025
IN THE MATTERS OF S.O CRC NO.28 OF 2018 AT SPM'S VIHIGA
AND
IN THE MATTERS OF HCCRA NO. E011 OF 2024 AT VIHIGA
AND
IN THE MATTERS OF PROBATION AND AFTER CARE SERVICES |PACS]
AND
IN THE MATTERS OF PARAGRAPH 4.1, 4.2 SENTENCING POLICY
GUIDELINES [SPGs] REVISED 2023
AND
IN THE MATTERS OF PROBATION OF OFFENDERS ACT CAP 64 AND THE
COMMUNITY SERVICE ORDER CAP 93
AND
IN THE MATTERS OF ARTICLE 25(C), 29(f), 50(2)(p),2 2, 23(3), 159,
163(3)(9), 24(1)(e) CONSTITUTION OF KENYA 2010 AND SECTION 323,
216, 329 OF THE CRIMINAL PROCEDURE CODE
BETWEEN
JOHN AUTO………………………………………………………………..……APPLICANT
VERSUS
REPUBLIC……………………………………………………………………RESPONDENT
(Being an application for probation and after care service from the orders,
decision and findings of Hon. J. Kamau (J). judgment delivered on 22.07.2025)
Coram:
Before Justice R. Nyakundi
RULING
Background:
1. The applicant was arraigned before the CM’s Court on 7th May 2018 charged
with offence of defilement contrary to section 8(1) (3) of the sexual Offences
Act no. 3 of 2006. The particulars of the offence are that on 4th day of June
1
CRIMINAL MISC APP NO. E064 OF 2025
2018 at Hobunaka village within Vihiga county intentionally and unlawfully
committed an act which caused penetration with his penis to the vagina of
Rita Andiwa a child aged 15 years.
2. He denied the offence and this was followed with a full trial where witnesses
were summoned by the State and thereafter the trial court ruled as follows:
According to PW1 and PW5 the accused gave them a lift on a motor bike and
later declined to stop so that they would alight. But the rest of the girls
managed to jump out but she was not able to jump out. According to PW1
they had seen the accused before. PW3 and PW4 were led to the home of
the accused by PW1. From the evidence of PW1 and PW3 and PW4 the
complainant knew the accused and was able to identify the accused's house
where she led PW3 and PW4. It is also worth noting that the PW1 spent
some time with the accused and was therefore able to recognize. From the
PW1 evidence itis clear that it is somebody who was known to the
complainant. The next ingredient in both charges the prosecution was
supposed to prove is age. The prosecution produced the age assessment
Report which assessed the age of the complainant as 17 years old by the
time the Report was done. The charge sheet was accordingly amended to
show that the time the offence was committed. I find that the prosecution
established that the complainant was a minor. In PW1 in her evidence stated
that the accused forced her to bed and removed her underpants and
inserted his penis into her vagina. The evidence of penetration was
collaborated by the evidence of the Clinical officer (PW4) who examined the
complainant. He found that there were bruises with visible genital
discharge. He also found out that the hymen had been raptured and there
was laceration to the vaginal wall. He concluded that there was penetration.
From the foregoing I find that the prosecution proved beyond reasonable
doubt that the accused defiled the complainant and proceed to convict him
under section 215 CPC on the main charge. However, the accused is
2
CRIMINAL MISC APP NO. E064 OF 2025
discharged on the alternative charge under section 215 CPC. Ordered
accordingly.
3. Thereafter the applicant was sentenced to 20 years imprisonment. He was
aggrieved with sentence and preferred to an appeal into the high court and
the session Judge Kamau J ruled as follows on the appeal in the Judgment
dated 17th July 2025:
a) For the foregoing reasons, the upshot of this court's decision was that the
Appellant's Petition of Appeal dated 15th January 2024 and filed on 19th
February 2024 and his Supplementary Grounds of Appeal dated 26th
November 2024 and filed on 28th November 2024 was not merited and the
same be and is hereby dismissed. His conviction be and is hereby upheld as
it was safe. However, his sentence of twenty (20) years be and is hereby set
aside and/or vacated and replaced with a sentence of fifteen (15) years
imprisonment.
b) However, for the avoidance of doubt, it is hereby ordered and directed that
the period that he spent in custody between 6th June 2018 and 26th
November 2019 be taken into account when computing his sentence in
accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws
of Kenya). It is so ordered.
4. He is still aggrieved with the sentence even after losing in both forums
constitutionally constituted.
5. This multiplicity of applications on the same subject matter and cause of
action runs foul against the doctrine of jurisdiction and res judicata. The
predominant question is, does this court have the jurisdiction to exercise
oversight over the issue of sentence?
Decision
6. First and foremost, lets us bring forth the doctrine of res judicata borrowed
more heavily from section 7 of the CPA. The plea of res judicata is both a
mixed question of fact and law. It is trite that res judicata is applicable to
both necessary and proper parties including co-defendants where the matter
3
CRIMINAL MISC APP NO. E064 OF 2025
has already been decided between those parties may it be civil or criminal
law. The contentious issue here is on sentence as between the State and the
applicant who is already serving sentence for the offence in which he
challenged his conviction and sentence to the first appeals court. This main
issue is what the applicant invites this court to address in the form of
resentencing. Therefore, it is a cause of action in the previous proceedings.
7. This is a doctrine which is applicable not only in Kenya but across multiple
legal systems, where it is invoked to protect, secure, and preserve the purity
of justice, and thereby sustain the proper administration of justice. In the
first instance, one may turn to comparative jurisprudence to bring the
doctrine home and to demonstrate its global applicability on the finality of
judicial decisions rendered by various courts, squarely aimed at delivering
justice to the parties and, essentially, averting an abuse of the court process.
In this respect, the Supreme Court of India, in the case of Satyadhyan Ghosal
v. Deorajin Debi [1960] 3 SCR 590, succinctly noted that the principle of
res judicata is essential in giving finality to judicial decisions, observing as
under:
“The principle of res judicata is based on the need of giving a finality to
judicial decisions. What it says is that once a res is judicata, it shall not be
adjudged again. Primarily it applies as between past litigation and future
litigation. When a matter — whether on a question of fact or a question of
law — has been decided between two parties in one suit or proceeding and
the decision is final, either because no appeal was taken to a higher court
or because the appeal was dismissed, or no appeal lies, neither party will
be allowed in a future suit or proceeding between the same parties to
canvass the matter again. This principle of res judicata is embodied in
relation to suits in Section 11 of the Code of Civil Procedure; but even where
Section 11 does not apply, the principle of res judicata has been applied by
courts for the purpose of achieving finality in litigation. The result of this is
that the original court as well as any higher court must in any future
4
CRIMINAL MISC APP NO. E064 OF 2025
litigation proceed on the basis that the previous decision was correct. The
principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the trial court or a higher court
having at an earlier stage decided a matter in one way will not allow the
parties to re-agitate the matter again at a subsequent stage of the same
proceedings. …”
8. In addition, the same supreme court in the case of Hope Planttaions Ltd v
Taluk Land Board (1999) 5 SCC 590 has elucidated the applicability of the
principles of res judicata and estoppel though for this case the judges were
speaking in the Indian Context but our civil procedure heritage and
promulgation draws from the fountain of Indian jurisprudence. In fact our
section 7 of the CPA as drafted and written by the legislature embodies the
same principles in Section 11 of Indian code of the civil procedure. That is
why these principles from the Indian supreme court can apply mutatis
mutandis to our circumstances. This what the court said in the above
authorities on res juridicata:
“26. It is settled law that the principles of estoppel and res judicata are
based on public policy and justice. Doctrine of res judicata is often treated
as branch of the law of estoppel though these two doctrines differ in some
essential particulars. Rule of res judicata prevents the parties to a judicial
determination from litigating the same question over again even though the
determination may even be demonstratedly wrong. When the proceedings
have attained finality, parties are bound by the judgment and are estopped
from questioning it. They cannot litigate again on the same cause of action
nor can they litigate any issue which was necessary for decision in the
earlier litigation. These two aspects are ‘cause of action estoppel’ and ‘issue
estoppel’. These two terms are of common law origin. Again, once an issue
has been finally determined, parties cannot subsequently in the same suit
advance arguments or adduce further evidence directed to showing that the
issue was wrongly determined. Their only remedy is to approach the higher
5
CRIMINAL MISC APP NO. E064 OF 2025
forum if available. The determination of the issue between the parties gives
rise to, as noted above, an issue estoppel. It operates in any subsequent
proceedings in the same suit in which the issue had been determined. It also
operates in subsequent suits between the same parties in which the same
issue arises. Section 11 of the Code of Civil Procedure contains provisions of
res judicata but these are not exhaustive of the general doctrine of res
judicata. Legal principles of estoppel and res judicata are equally applicable
in proceedings before administrative authorities as they are based on public
policy and justice. ………
Law on res judicata and estoppel is well understood in India and there are
ample authoritative pronouncements by various courts on these subjects. As
noted above, the plea of res judicata, though technical, is based on public
policy in order to put an end to litigation. It is, however, different if an issue
which had been decided in an earlier litigation again arises for
determination between the same parties in a suit based on a fresh cause of
action or where there is continuous cause of action. The parties then may
not be bound by the determination made earlier if in the meanwhile, law
has changed or has been interpreted differently by a higher forum. But that
situation does not exist here. Principles of constructive res judicata apply
with full force. It is the subsequent stage of the same proceedings. If we refer
to Order XLVII of the Code (Explanation to Rule 1) review is not permissible
on the ground ‘that the decision on a question of law on which the judgment
of the Court is based has been reversed or modified by the subsequent
decision of a superior court in any other case, shall not be a ground for the
review of such judgment’.”
9. In order to appreciate this doctrine of res judicata and its applicability in
Kenya in so far as the interpretation of Section 7 of the CPA the following
cases shades lights in the transformative jurisprudence in the matter:
Dina Management Ltd v County Government of Mombasa & 5 Others
[2021] eKLR (SC Petition 8 of 2021): This case involved the appellant
6
CRIMINAL MISC APP NO. E064 OF 2025
attempting to re-litigate ownership rights over a property already
determined in previous, different suits. The Court emphasized the
importance of ensuring that the same issues are not repeatedly litigated.
Samson Machi v. George Njoroge [2015] Supreme Court ruling: While
discussing the principles of estoppel by record, the court acknowledged the
application of res judicata where issues in a new suit have been settled by
a previous judgment in rem, such as in the case regarding FERI and COD
certifications.
Relevant Contextual Principles (2025): Recent high-level filings, such as
George Gilbert & Mombo Advocates v Saimanga and OKIYA OMTATAH VS
PORTSIDE FREIGHT TERMINALS LTD & 13 OTHERS, demonstrate that res
judicata is often argued in cases involving the setting aside of execution
orders based on prior litigation.
10. The key principles which are explicitly developed in the various case law
include the fowling:
Same parties/issue: for res judicata to apply, the matter must have been
directly and substantially in issue in a former suit between the same
parties.
Exceptions: res judicata may not apply if it can be demonstrated that the
prior decision was obtained through fraud or if new, significant evidence is
discovered, as seen in cases like AMN v PMN (2016) eKLR
11. The essence of the doctrine of res judicata prevents parties whether in the
arena of criminal law, civil, commercial, family etc. from re-litigating cases or
issues that have been already decided by a competent court. It serves to end
litigation, protect individual sin, double jeopardy in adjudication of dispute
be the civil or criminal and ensure finality. How does this rule apply to this
case? The High court on 17th July 2025 ruled with finality on the issue of
conviction and sentence. That decision is binding on this court with
concurrent jurisdiction and no longer subject to be reviewed by this court or
any other substantive issue dealing with conviction and sentence. In my
7
CRIMINAL MISC APP NO. E064 OF 2025
considered view therefore the doctrine of estoppel in our legal system
landscape prevents the applicant in the criminal law system of administration
from going back on a representation, promise or shared assumption where
another applicant/convict serving sentence or appellant has reasonably relied
on the rubric of re-sentencing which was birthed by the Muruatetu decision
to his or her detriment. There is both in law or jurisprudence that criminal
cases which have been concluded with finality unless on appeal a court like
the one I am presiding over can exercise jurisdiction of any kind to overturn
a judgment may it be a single word, decree, full stop etc. likely to overturn a
previous decision. That is why the doctrine of res judicata and estoppel is
applicable to criminal cases to promote fairness, finality and consistency in
the fair administration of justices.
12. For those reasons the application is founded on All Other Ground which is
Sinking Sand and not the Solid Rock of the law. The applicant therefore walks
naked from this court without a remedy.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026
………………………………………….
R. NYAKUNDI
JUDGE
8
CRIMINAL MISC APP NO. E064 OF 2025
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC APP NO. E064 OF 2025
IN THE MATTERS OF S.O CRC NO.28 OF 2018 AT SPM'S VIHIGA
AND
IN THE MATTERS OF HCCRA NO. E011 OF 2024 AT VIHIGA
AND
IN THE MATTERS OF PROBATION AND AFTER CARE SERVICES |PACS]
AND
IN THE MATTERS OF PARAGRAPH 4.1, 4.2 SENTENCING POLICY
GUIDELINES [SPGs] REVISED 2023
AND
IN THE MATTERS OF PROBATION OF OFFENDERS ACT CAP 64 AND THE
COMMUNITY SERVICE ORDER CAP 93
AND
IN THE MATTERS OF ARTICLE 25(C), 29(f), 50(2)(p),2 2, 23(3), 159,
163(3)(9), 24(1)(e) CONSTITUTION OF KENYA 2010 AND SECTION 323,
216, 329 OF THE CRIMINAL PROCEDURE CODE
BETWEEN
JOHN AUTO………………………………………………………………..……APPLICANT
VERSUS
REPUBLIC……………………………………………………………………RESPONDENT
(Being an application for probation and after care service from the orders,
decision and findings of Hon. J. Kamau (J). judgment delivered on 22.07.2025)
Coram:
Before Justice R. Nyakundi
RULING
Background:
1. The applicant was arraigned before the CM’s Court on 7th May 2018 charged
with offence of defilement contrary to section 8(1) (3) of the sexual Offences
Act no. 3 of 2006. The particulars of the offence are that on 4th day of June
1
CRIMINAL MISC APP NO. E064 OF 2025
2018 at Hobunaka village within Vihiga county intentionally and unlawfully
committed an act which caused penetration with his penis to the vagina of
Rita Andiwa a child aged 15 years.
2. He denied the offence and this was followed with a full trial where witnesses
were summoned by the State and thereafter the trial court ruled as follows:
According to PW1 and PW5 the accused gave them a lift on a motor bike and
later declined to stop so that they would alight. But the rest of the girls
managed to jump out but she was not able to jump out. According to PW1
they had seen the accused before. PW3 and PW4 were led to the home of
the accused by PW1. From the evidence of PW1 and PW3 and PW4 the
complainant knew the accused and was able to identify the accused's house
where she led PW3 and PW4. It is also worth noting that the PW1 spent
some time with the accused and was therefore able to recognize. From the
PW1 evidence itis clear that it is somebody who was known to the
complainant. The next ingredient in both charges the prosecution was
supposed to prove is age. The prosecution produced the age assessment
Report which assessed the age of the complainant as 17 years old by the
time the Report was done. The charge sheet was accordingly amended to
show that the time the offence was committed. I find that the prosecution
established that the complainant was a minor. In PW1 in her evidence stated
that the accused forced her to bed and removed her underpants and
inserted his penis into her vagina. The evidence of penetration was
collaborated by the evidence of the Clinical officer (PW4) who examined the
complainant. He found that there were bruises with visible genital
discharge. He also found out that the hymen had been raptured and there
was laceration to the vaginal wall. He concluded that there was penetration.
From the foregoing I find that the prosecution proved beyond reasonable
doubt that the accused defiled the complainant and proceed to convict him
under section 215 CPC on the main charge. However, the accused is
2
CRIMINAL MISC APP NO. E064 OF 2025
discharged on the alternative charge under section 215 CPC. Ordered
accordingly.
3. Thereafter the applicant was sentenced to 20 years imprisonment. He was
aggrieved with sentence and preferred to an appeal into the high court and
the session Judge Kamau J ruled as follows on the appeal in the Judgment
dated 17th July 2025:
a) For the foregoing reasons, the upshot of this court's decision was that the
Appellant's Petition of Appeal dated 15th January 2024 and filed on 19th
February 2024 and his Supplementary Grounds of Appeal dated 26th
November 2024 and filed on 28th November 2024 was not merited and the
same be and is hereby dismissed. His conviction be and is hereby upheld as
it was safe. However, his sentence of twenty (20) years be and is hereby set
aside and/or vacated and replaced with a sentence of fifteen (15) years
imprisonment.
b) However, for the avoidance of doubt, it is hereby ordered and directed that
the period that he spent in custody between 6th June 2018 and 26th
November 2019 be taken into account when computing his sentence in
accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws
of Kenya). It is so ordered.
4. He is still aggrieved with the sentence even after losing in both forums
constitutionally constituted.
5. This multiplicity of applications on the same subject matter and cause of
action runs foul against the doctrine of jurisdiction and res judicata. The
predominant question is, does this court have the jurisdiction to exercise
oversight over the issue of sentence?
Decision
6. First and foremost, lets us bring forth the doctrine of res judicata borrowed
more heavily from section 7 of the CPA. The plea of res judicata is both a
mixed question of fact and law. It is trite that res judicata is applicable to
both necessary and proper parties including co-defendants where the matter
3
CRIMINAL MISC APP NO. E064 OF 2025
has already been decided between those parties may it be civil or criminal
law. The contentious issue here is on sentence as between the State and the
applicant who is already serving sentence for the offence in which he
challenged his conviction and sentence to the first appeals court. This main
issue is what the applicant invites this court to address in the form of
resentencing. Therefore, it is a cause of action in the previous proceedings.
7. This is a doctrine which is applicable not only in Kenya but across multiple
legal systems, where it is invoked to protect, secure, and preserve the purity
of justice, and thereby sustain the proper administration of justice. In the
first instance, one may turn to comparative jurisprudence to bring the
doctrine home and to demonstrate its global applicability on the finality of
judicial decisions rendered by various courts, squarely aimed at delivering
justice to the parties and, essentially, averting an abuse of the court process.
In this respect, the Supreme Court of India, in the case of Satyadhyan Ghosal
v. Deorajin Debi [1960] 3 SCR 590, succinctly noted that the principle of
res judicata is essential in giving finality to judicial decisions, observing as
under:
“The principle of res judicata is based on the need of giving a finality to
judicial decisions. What it says is that once a res is judicata, it shall not be
adjudged again. Primarily it applies as between past litigation and future
litigation. When a matter — whether on a question of fact or a question of
law — has been decided between two parties in one suit or proceeding and
the decision is final, either because no appeal was taken to a higher court
or because the appeal was dismissed, or no appeal lies, neither party will
be allowed in a future suit or proceeding between the same parties to
canvass the matter again. This principle of res judicata is embodied in
relation to suits in Section 11 of the Code of Civil Procedure; but even where
Section 11 does not apply, the principle of res judicata has been applied by
courts for the purpose of achieving finality in litigation. The result of this is
that the original court as well as any higher court must in any future
4
CRIMINAL MISC APP NO. E064 OF 2025
litigation proceed on the basis that the previous decision was correct. The
principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the trial court or a higher court
having at an earlier stage decided a matter in one way will not allow the
parties to re-agitate the matter again at a subsequent stage of the same
proceedings. …”
8. In addition, the same supreme court in the case of Hope Planttaions Ltd v
Taluk Land Board (1999) 5 SCC 590 has elucidated the applicability of the
principles of res judicata and estoppel though for this case the judges were
speaking in the Indian Context but our civil procedure heritage and
promulgation draws from the fountain of Indian jurisprudence. In fact our
section 7 of the CPA as drafted and written by the legislature embodies the
same principles in Section 11 of Indian code of the civil procedure. That is
why these principles from the Indian supreme court can apply mutatis
mutandis to our circumstances. This what the court said in the above
authorities on res juridicata:
“26. It is settled law that the principles of estoppel and res judicata are
based on public policy and justice. Doctrine of res judicata is often treated
as branch of the law of estoppel though these two doctrines differ in some
essential particulars. Rule of res judicata prevents the parties to a judicial
determination from litigating the same question over again even though the
determination may even be demonstratedly wrong. When the proceedings
have attained finality, parties are bound by the judgment and are estopped
from questioning it. They cannot litigate again on the same cause of action
nor can they litigate any issue which was necessary for decision in the
earlier litigation. These two aspects are ‘cause of action estoppel’ and ‘issue
estoppel’. These two terms are of common law origin. Again, once an issue
has been finally determined, parties cannot subsequently in the same suit
advance arguments or adduce further evidence directed to showing that the
issue was wrongly determined. Their only remedy is to approach the higher
5
CRIMINAL MISC APP NO. E064 OF 2025
forum if available. The determination of the issue between the parties gives
rise to, as noted above, an issue estoppel. It operates in any subsequent
proceedings in the same suit in which the issue had been determined. It also
operates in subsequent suits between the same parties in which the same
issue arises. Section 11 of the Code of Civil Procedure contains provisions of
res judicata but these are not exhaustive of the general doctrine of res
judicata. Legal principles of estoppel and res judicata are equally applicable
in proceedings before administrative authorities as they are based on public
policy and justice. ………
Law on res judicata and estoppel is well understood in India and there are
ample authoritative pronouncements by various courts on these subjects. As
noted above, the plea of res judicata, though technical, is based on public
policy in order to put an end to litigation. It is, however, different if an issue
which had been decided in an earlier litigation again arises for
determination between the same parties in a suit based on a fresh cause of
action or where there is continuous cause of action. The parties then may
not be bound by the determination made earlier if in the meanwhile, law
has changed or has been interpreted differently by a higher forum. But that
situation does not exist here. Principles of constructive res judicata apply
with full force. It is the subsequent stage of the same proceedings. If we refer
to Order XLVII of the Code (Explanation to Rule 1) review is not permissible
on the ground ‘that the decision on a question of law on which the judgment
of the Court is based has been reversed or modified by the subsequent
decision of a superior court in any other case, shall not be a ground for the
review of such judgment’.”
9. In order to appreciate this doctrine of res judicata and its applicability in
Kenya in so far as the interpretation of Section 7 of the CPA the following
cases shades lights in the transformative jurisprudence in the matter:
Dina Management Ltd v County Government of Mombasa & 5 Others
[2021] eKLR (SC Petition 8 of 2021): This case involved the appellant
6
CRIMINAL MISC APP NO. E064 OF 2025
attempting to re-litigate ownership rights over a property already
determined in previous, different suits. The Court emphasized the
importance of ensuring that the same issues are not repeatedly litigated.
Samson Machi v. George Njoroge [2015] Supreme Court ruling: While
discussing the principles of estoppel by record, the court acknowledged the
application of res judicata where issues in a new suit have been settled by
a previous judgment in rem, such as in the case regarding FERI and COD
certifications.
Relevant Contextual Principles (2025): Recent high-level filings, such as
George Gilbert & Mombo Advocates v Saimanga and OKIYA OMTATAH VS
PORTSIDE FREIGHT TERMINALS LTD & 13 OTHERS, demonstrate that res
judicata is often argued in cases involving the setting aside of execution
orders based on prior litigation.
10. The key principles which are explicitly developed in the various case law
include the fowling:
Same parties/issue: for res judicata to apply, the matter must have been
directly and substantially in issue in a former suit between the same
parties.
Exceptions: res judicata may not apply if it can be demonstrated that the
prior decision was obtained through fraud or if new, significant evidence is
discovered, as seen in cases like AMN v PMN (2016) eKLR
11. The essence of the doctrine of res judicata prevents parties whether in the
arena of criminal law, civil, commercial, family etc. from re-litigating cases or
issues that have been already decided by a competent court. It serves to end
litigation, protect individual sin, double jeopardy in adjudication of dispute
be the civil or criminal and ensure finality. How does this rule apply to this
case? The High court on 17th July 2025 ruled with finality on the issue of
conviction and sentence. That decision is binding on this court with
concurrent jurisdiction and no longer subject to be reviewed by this court or
any other substantive issue dealing with conviction and sentence. In my
7
CRIMINAL MISC APP NO. E064 OF 2025
considered view therefore the doctrine of estoppel in our legal system
landscape prevents the applicant in the criminal law system of administration
from going back on a representation, promise or shared assumption where
another applicant/convict serving sentence or appellant has reasonably relied
on the rubric of re-sentencing which was birthed by the Muruatetu decision
to his or her detriment. There is both in law or jurisprudence that criminal
cases which have been concluded with finality unless on appeal a court like
the one I am presiding over can exercise jurisdiction of any kind to overturn
a judgment may it be a single word, decree, full stop etc. likely to overturn a
previous decision. That is why the doctrine of res judicata and estoppel is
applicable to criminal cases to promote fairness, finality and consistency in
the fair administration of justices.
12. For those reasons the application is founded on All Other Ground which is
Sinking Sand and not the Solid Rock of the law. The applicant therefore walks
naked from this court without a remedy.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026
………………………………………….
R. NYAKUNDI
JUDGE
8
CRIMINAL MISC APP NO. E064 OF 2025