1. The Applicant’s notice of motion seeks review of sentence so that the period that he spent in custody as his trial proceeded before the lower court is taken into account and his sentence proportionately reduced in line with Section 333(2) of the Criminal Procedure Code.
2. The Applicant deposes in his affidavit in support of his application that he was charged, tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act in Kisumu Chief Magistrate’s Criminal Case No. 18 of 2016 and was sentenced to seventy-five (75) years’ imprisonment.
3. Being dissatisfied with the conviction and sentence, he lodged an appeal to the High Court in Kisumu High Court Criminal Appeal No. 116 of 2018. The appeal on conviction was dismissed, but the sentences imposed were ordered to run concurrently, resulting in an effective sentence of twenty (20) years’ imprisonment.
4. The Applicant urges the Court to invoke the provisions of Section 333(2) of the Criminal Procedure Code and take into account the period he spent in remand custody before conviction and sentencing. He contends that this Court has jurisdiction under Article 165(3)(b) of the Constitution of to hear and determine the application.
5. The application is opposed and to that end the Respondent filed a replying affidavit sworn by Mercy Mutheu Muema, Prosecution Counsel.
6. In her affidavit, Ms. Muema deposes that the application is misconceived, bad in law, an abuse of the court process and should be dismissed with costs.
7. She states that the Applicant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act in Kisumu Criminal Case No. 18 of 2016 and was initially sentenced to seventy-five years’ imprisonment.
8. She avers that the Applicant’s own affidavit acknowledges that his appeal to the High Court was dismissed, save that the sentence was reduced and ordered to run concurrently, resulting in an effective sentence of twenty years’ imprisonment.
9. She further deposes that the Applicant’s appeal in Kisumu High Court Criminal Appeal No. 116 of 2018 was heard and determined by Cherere J. on 28th July, 2020, the conviction being upheld while the sentence was reduced to twenty years’ imprisonment to run concurrently.
10. According to the deponent, the present application is not the first one of its kind filed by the Applicant. She states that the Applicant has previously lodged at least two applications before the same court seeking substantially similar reliefs and advancing similar grounds, both of which were dismissed.
11. She avers that the current application is materially identical to Miscellaneous Criminal Application No. E121 of 2022, in which the Applicant sought a definite and lenient sentence under Article 50(2)(p) and (q) of the Constitution and requested consideration of the period spent in custody pursuant to Section 333(2) of the Criminal Procedure Code.
12. Counsel states that the said application was dismissed because the court lacked jurisdiction to further reduce a sentence that had already been reduced on appeal; the Applicant had failed to disclose material facts relating to his arrest and bond status; and the absence of proceedings prevented the court from determining whether Section 333(2) of the Criminal Procedure Code could properly be invoked. She has annexed a copy of the ruling in Obala v Republic (2023) KEHC 3150 (KLR) as exhibit “MMM-1”.
13. It is Ms. Muema’s position that the present application amounts to a direct re-litigation of matters already conclusively determined in Miscellaneous Criminal Application No. E121 of 2022. She contends that the Applicant has not presented any new evidence, fresh facts or changed circumstances capable of justifying a departure from the earlier decision and that the application therefore constitutes an abuse of the court process.
14. She further deposes that, notwithstanding the dismissal of the earlier application, the Applicant subsequently filed Criminal Revision No. E099 of 2024 seeking similar orders relating to sentence review and the application of Section 333(2) of the Criminal Procedure Code.
15. Counsel states that Criminal Revision No. E099 of 2024 was dismissed on 3rd June, 2024 because the document filed was neither sworn nor commissioned as an affidavit, there was no accompanying application, no proceedings were supplied to support the allegations regarding time spent in custody, and the application was found to be fatally incompetent. She has annexed a copy of the ruling in Obala v Republic (2024) KEHC 6437 (KLR) as exhibit “MMM-3”.
16. Ms. Muema contends that the current application represents a third attempt by the Applicant to re-open issues that have already been conclusively determined by the court. She asserts that the court is functus officio, having pronounced itself on the same issues on at least two prior occasions.
17. She further avers that the Applicant has a pending appeal before the Court of Appeal at Kisumu after being granted leave and extension of time to file and serve a petition of appeal in Criminal Application No. E174 of 2024 by Omondi JA on 24 October 2025. She has annexed a copy of the ruling in Obala v Republic (2025) KECA 1768 (KLR).
18. In light of the pending appeal, she contends that the High Court lacks jurisdiction to entertain the present application because the matter is now properly before the Court of Appeal. She maintains that granting the application would interfere with the appellate process and result in a multiplicity of proceedings on the same subject matter.
19. Counsel deposes that the Applicant has once again invoked Section 333(2) of the Criminal Procedure Code without providing court proceedings, documentary evidence, or any verifiable material demonstrating the period spent in remand custody or showing that such period was not already taken into account during sentencing. She maintains that the present application suffers from the same deficiency identified in the earlier rulings.
20. The deponent further states that although the Applicant has invoked various constitutional provisions, including Articles 2, 3A, 19(2), 20(1), 22(1), 25(c), 26(1), 27(1) and (4), 28, 50(2)(p) and (q) and 159(2) of the Constitution, the mere citation of constitutional provisions does not confer merit or jurisdiction upon an application whose substantive issues have already been determined and dismissed.
21. She further contends that the application is improperly anchored on High Court Criminal Appeal No. 116 of 2018, a matter that was fully heard and finally determined on 28th July, 2020. Consequently, she maintains that the court is functus officio and lacks residual jurisdiction to entertain further applications founded on that concluded appeal.
22. Finally, Counsel states that the Applicant’s reliance on rehabilitation certificates, personal circumstances and pleas for leniency does not constitute a lawful basis for granting the orders sought, particularly because the sentence had already been substantially reduced from seventy-five years to twenty years and because the matter is presently before the Court of Appeal. She therefore urges the court, in the interests of justice, judicial economy, and finality of litigation, to dismiss the application and allow the Applicant to pursue the remedies available before the Court of Appeal.
23. Having considered the notice of motion, the supporting affidavit, the replying affidavit and the parties’ respective positions, the Court is of the view that the application raises a single issue for determination, namely, whether this Court has the jurisdiction to entertain and grant the Applicant’s request for review of sentence and application of Section 333(2) of the Criminal Procedure Code, taking into account that the sentence was previously considered on appeal, similar applications have been determined by the High Court and there is a pending appeal before the Court of Appeal.
24. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court finds that it lacks jurisdiction, it must down its tools and decline to entertain the matter. The question of jurisdiction must therefore be determined at the outset.
25. The Applicant urges this Court to consider the period he allegedly spent in remand custody before conviction and sentencing and to reduce his sentence accordingly pursuant to Section 333(2) of the Criminal Procedure Code. However, the material placed before the Court demonstrates that this is not the first time the Applicant has sought such relief.
26. The Respondent has demonstrated, and the Applicant has not controverted, that he previously filed Miscellaneous Criminal Application No. E121 of 2022 in which he sought, among other reliefs, consideration of the period spent in custody under Section 333(2) of the Criminal Procedure Code. That application was heard and determined and was dismissed.
27. Thereafter, the Applicant filed Criminal Revision No. E099 of 2024 raising substantially similar complaints relating to sentence review and the application of Section 333(2) of the Criminal Procedure Code. That application was likewise considered and dismissed by the High Court.
28. It is therefore evident that the question whether the Applicant is entitled to relief under Section 333(2) of the Criminal Procedure Code has already been placed before and determined by courts of concurrent jurisdiction. This Court cannot sit on appeal over, review, vary or otherwise revisit decisions made by judges of equal status. To do so would offend the principle of finality of litigation and undermine the orderly administration of justice.
29. Whereas the Applicant has attempted to invoke various constitutional provisions in support of his application, the mere invocation of constitutional articles cannot confer jurisdiction where none exists. The substance of the application remains a request for relief that has previously been sought and determined by courts of concurrent jurisdiction. This Court cannot arrogate unto itself appellate or review powers over decisions rendered by other judges of the High Court.
30. I further note that the Applicant has already been granted leave to pursue an appeal before the Court of Appeal. The Applicant therefore has an available and appropriate forum before which he may ventilate all grievances relating to his conviction, sentence and the alleged failure to comply with Section 333(2) of the Criminal Procedure Code.
31. Once the Court of Appeal became seized of the matter through the appellate process, any complaint concerning the sentence imposed, including the question whether the period spent in custody was properly taken into account, became a matter more appropriately falling within the province of that Court.
32. It would be improper for this Court to entertain parallel proceedings touching on the same subject matter while the appellate process remains available and has in fact already been invoked by the Applicant.
33. In the circumstances, I find that this Court lacks jurisdiction to entertain the present application. The issues raised herein have already been considered and determined by courts of concurrent jurisdiction and any further challenge thereto lies before the Court of Appeal and not before another High Court Judge.
34. Accordingly, the Applicant’s notice of motion is devoid of merit and is hereby dismissed.
35. This file is hereby closed.
36. Orders accordingly.
DELIVERED (virtually), DATED & SIGNED this 31st day of July, 2026.
JOE M. OMIDO.
JUDGE
APPLICANT: Present, virtually.
FOR RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The Applicant deposes in his affidavit in support of his application that he was charged, tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act in Kisumu Chief Magistrate’s Criminal Case No. 18 of 2016 and was sentenced to seventy-five (75) years’ imprisonment.
3. Being dissatisfied with the conviction and sentence, he lodged an appeal to the High Court in Kisumu High Court Criminal Appeal No. 116 of 2018. The appeal on conviction was dismissed, but the sentences imposed were ordered to run concurrently, resulting in an effective sentence of twenty (20) years’ imprisonment.
4. The Applicant urges the Court to invoke the provisions of Section 333(2) of the Criminal Procedure Code and take into account the period he spent in remand custody before conviction and sentencing. He contends that this Court has jurisdiction under Article 165(3)(b) of the Constitution of to hear and determine the application.
5. The application is opposed and to that end the Respondent filed a replying affidavit sworn by Mercy Mutheu Muema, Prosecution Counsel.
6. In her affidavit, Ms. Muema deposes that the application is misconceived, bad in law, an abuse of the court process and should be dismissed with costs.
7. She states that the Applicant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act in Kisumu Criminal Case No. 18 of 2016 and was initially sentenced to seventy-five years’ imprisonment.
8. She avers that the Applicant’s own affidavit acknowledges that his appeal to the High Court was dismissed, save that the sentence was reduced and ordered to run concurrently, resulting in an effective sentence of twenty years’ imprisonment.
9. She further deposes that the Applicant’s appeal in Kisumu High Court Criminal Appeal No. 116 of 2018 was heard and determined by Cherere J. on 28th July, 2020, the conviction being upheld while the sentence was reduced to twenty years’ imprisonment to run concurrently.
10. According to the deponent, the present application is not the first one of its kind filed by the Applicant. She states that the Applicant has previously lodged at least two applications before the same court seeking substantially similar reliefs and advancing similar grounds, both of which were dismissed.
11. She avers that the current application is materially identical to Miscellaneous Criminal Application No. E121 of 2022, in which the Applicant sought a definite and lenient sentence under Article 50(2)(p) and (q) of the Constitution and requested consideration of the period spent in custody pursuant to Section 333(2) of the Criminal Procedure Code.
12. Counsel states that the said application was dismissed because the court lacked jurisdiction to further reduce a sentence that had already been reduced on appeal; the Applicant had failed to disclose material facts relating to his arrest and bond status; and the absence of proceedings prevented the court from determining whether Section 333(2) of the Criminal Procedure Code could properly be invoked. She has annexed a copy of the ruling in Obala v Republic (2023) KEHC 3150 (KLR) as exhibit “MMM-1”.
13. It is Ms. Muema’s position that the present application amounts to a direct re-litigation of matters already conclusively determined in Miscellaneous Criminal Application No. E121 of 2022. She contends that the Applicant has not presented any new evidence, fresh facts or changed circumstances capable of justifying a departure from the earlier decision and that the application therefore constitutes an abuse of the court process.
14. She further deposes that, notwithstanding the dismissal of the earlier application, the Applicant subsequently filed Criminal Revision No. E099 of 2024 seeking similar orders relating to sentence review and the application of Section 333(2) of the Criminal Procedure Code.
15. Counsel states that Criminal Revision No. E099 of 2024 was dismissed on 3rd June, 2024 because the document filed was neither sworn nor commissioned as an affidavit, there was no accompanying application, no proceedings were supplied to support the allegations regarding time spent in custody, and the application was found to be fatally incompetent. She has annexed a copy of the ruling in Obala v Republic (2024) KEHC 6437 (KLR) as exhibit “MMM-3”.
16. Ms. Muema contends that the current application represents a third attempt by the Applicant to re-open issues that have already been conclusively determined by the court. She asserts that the court is functus officio, having pronounced itself on the same issues on at least two prior occasions.
17. She further avers that the Applicant has a pending appeal before the Court of Appeal at Kisumu after being granted leave and extension of time to file and serve a petition of appeal in Criminal Application No. E174 of 2024 by Omondi JA on 24 October 2025. She has annexed a copy of the ruling in Obala v Republic (2025) KECA 1768 (KLR).
18. In light of the pending appeal, she contends that the High Court lacks jurisdiction to entertain the present application because the matter is now properly before the Court of Appeal. She maintains that granting the application would interfere with the appellate process and result in a multiplicity of proceedings on the same subject matter.
19. Counsel deposes that the Applicant has once again invoked Section 333(2) of the Criminal Procedure Code without providing court proceedings, documentary evidence, or any verifiable material demonstrating the period spent in remand custody or showing that such period was not already taken into account during sentencing. She maintains that the present application suffers from the same deficiency identified in the earlier rulings.
20. The deponent further states that although the Applicant has invoked various constitutional provisions, including Articles 2, 3A, 19(2), 20(1), 22(1), 25(c), 26(1), 27(1) and (4), 28, 50(2)(p) and (q) and 159(2) of the Constitution, the mere citation of constitutional provisions does not confer merit or jurisdiction upon an application whose substantive issues have already been determined and dismissed.
21. She further contends that the application is improperly anchored on High Court Criminal Appeal No. 116 of 2018, a matter that was fully heard and finally determined on 28th July, 2020. Consequently, she maintains that the court is functus officio and lacks residual jurisdiction to entertain further applications founded on that concluded appeal.
22. Finally, Counsel states that the Applicant’s reliance on rehabilitation certificates, personal circumstances and pleas for leniency does not constitute a lawful basis for granting the orders sought, particularly because the sentence had already been substantially reduced from seventy-five years to twenty years and because the matter is presently before the Court of Appeal. She therefore urges the court, in the interests of justice, judicial economy, and finality of litigation, to dismiss the application and allow the Applicant to pursue the remedies available before the Court of Appeal.
23. Having considered the notice of motion, the supporting affidavit, the replying affidavit and the parties’ respective positions, the Court is of the view that the application raises a single issue for determination, namely, whether this Court has the jurisdiction to entertain and grant the Applicant’s request for review of sentence and application of Section 333(2) of the Criminal Procedure Code, taking into account that the sentence was previously considered on appeal, similar applications have been determined by the High Court and there is a pending appeal before the Court of Appeal.
24. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court finds that it lacks jurisdiction, it must down its tools and decline to entertain the matter. The question of jurisdiction must therefore be determined at the outset.
25. The Applicant urges this Court to consider the period he allegedly spent in remand custody before conviction and sentencing and to reduce his sentence accordingly pursuant to Section 333(2) of the Criminal Procedure Code. However, the material placed before the Court demonstrates that this is not the first time the Applicant has sought such relief.
26. The Respondent has demonstrated, and the Applicant has not controverted, that he previously filed Miscellaneous Criminal Application No. E121 of 2022 in which he sought, among other reliefs, consideration of the period spent in custody under Section 333(2) of the Criminal Procedure Code. That application was heard and determined and was dismissed.
27. Thereafter, the Applicant filed Criminal Revision No. E099 of 2024 raising substantially similar complaints relating to sentence review and the application of Section 333(2) of the Criminal Procedure Code. That application was likewise considered and dismissed by the High Court.
28. It is therefore evident that the question whether the Applicant is entitled to relief under Section 333(2) of the Criminal Procedure Code has already been placed before and determined by courts of concurrent jurisdiction. This Court cannot sit on appeal over, review, vary or otherwise revisit decisions made by judges of equal status. To do so would offend the principle of finality of litigation and undermine the orderly administration of justice.
29. Whereas the Applicant has attempted to invoke various constitutional provisions in support of his application, the mere invocation of constitutional articles cannot confer jurisdiction where none exists. The substance of the application remains a request for relief that has previously been sought and determined by courts of concurrent jurisdiction. This Court cannot arrogate unto itself appellate or review powers over decisions rendered by other judges of the High Court.
30. I further note that the Applicant has already been granted leave to pursue an appeal before the Court of Appeal. The Applicant therefore has an available and appropriate forum before which he may ventilate all grievances relating to his conviction, sentence and the alleged failure to comply with Section 333(2) of the Criminal Procedure Code.
31. Once the Court of Appeal became seized of the matter through the appellate process, any complaint concerning the sentence imposed, including the question whether the period spent in custody was properly taken into account, became a matter more appropriately falling within the province of that Court.
32. It would be improper for this Court to entertain parallel proceedings touching on the same subject matter while the appellate process remains available and has in fact already been invoked by the Applicant.
33. In the circumstances, I find that this Court lacks jurisdiction to entertain the present application. The issues raised herein have already been considered and determined by courts of concurrent jurisdiction and any further challenge thereto lies before the Court of Appeal and not before another High Court Judge.
34. Accordingly, the Applicant’s notice of motion is devoid of merit and is hereby dismissed.
35. This file is hereby closed.
36. Orders accordingly.
DELIVERED (virtually), DATED & SIGNED this 31st day of July, 2026.
JOE M. OMIDO.
JUDGE
APPLICANT: Present, virtually.
FOR RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.