Criminal Misc. Application No. E021 of 2026 Page 1 of 6
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC APP. NO. E021 OF 2026
IN THE MATTER OF HCCRC. NO. E004 OF 2022 AT VIHIGA
AND
IN THE MATTER OF SECTION 323, 216, 329 CRIMINAL PROCEDURE CODE
AND
IN THE MATTERS OF ARTICLE 22, 23(1) (3), 50(2)(P), 50(2)(q), 25(c),159(1)
a,b,d, 165(3)(a) CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF PARAGRAPH 4.8, 3.2.1, 3.2.2, 3.2.3, 3.3, 3.3.1, 3.3.5
SENTENCING POLICY GUIDELINES (SPG'S) REVISED 2023. SECTION 35 OF
THE PENAL CODE
AND
IN THE MATTERS OF MURDER CASE C/S 203 AS READ WITH SECTION 204
OF THE PENAL CODE
RADON ANDANJE OMULAMA……………………………………………..APPLICANT
VERSUS
REPUBLIC……………………………………………………………………RESPONDEN
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated on 12th March 2026, the Applicant
seeks the following orders:
Criminal Misc. Application No. E021 of 2026 Page 2 of 6
a. May this Court be pleased to hear and determine this application.
b. May this Court be pleased under its discretion to reduce the Applicant's
sentence to a lesser severe sentence.
c. May this Court be pleased to make a finding that the appellant's sentence
should run from the date of his arrest
d. Spent.
e. May this Court waive any cost involved and see to it that the Applicant shall
be present at the hearing thereof.
2. Based on the grounds:
a. Rehabilitation, reformation, social re-adaptation and profusely
remorsefulness of the Applicant.
b. Old age and health status of the Applicant.
c. He is an old man of 76 years and of weak health.
d. The Applicant is a pauper and in prison.
e. More grounds in the sworn affidavit and others to be at the hearing thereof.
3. The application is supported by the annexed affidavit of Radon Andanje
Omulama who deponed as follows:
a. That, I am an adult male of sound mind hence competent to make oath and
swear this affidavit.
b. That, I was sentenced to serve 15 years in an offence of murder c/s 203 as
read with 204 of the penal code Vide HCCRC NO. E004 OF 2022 AT VIHIGA
c. That, I am stepping before this seat of justice with this humble application
requesting this Hon. Court to consider complete leniency, mercy and grace
rather than condemnation and reduce, suspend, unconditionally absolute
discharge, or give a non-custodial sentence to the Applicant as it may deem
fit.
d. That, the Applicant will suffer irreparable loss if orders sought will not be
granted.
Decision
4. The Applicant in this case upon a full trial was sentenced to 15 years
Criminal Misc. Application No. E021 of 2026 Page 3 of 6
imprisonment, he is aggrieved with sentence and has filed this petition
seeking a review of the verdict with that of a lesser term imprisonment.
5. In delving to this question I bear in mind the principles and objectives of
sentencing in a criminal offence which include inter alia:
Retribution: to satisfy the feeling of vengeance in the mind of victim and
the large number of people who share the agony of victim
Prevention: to take away from the offender the power of offending
Deterrence: to make the offender afraid of consequences, if the similar
act is repeated (intimidation) and to create awe in the minds of the
persons who are disposed to commit similar offences.
Reformation: to remove the desire of punishment from the mind of
wrongdoer.
6. Concerning the sentence under review the Court has also to take into account
the elucidative principles in the case of Bernard Gacheru vs Republic [2002]
eKLR the Court held that:
“It is now settled law, following several authorities by this Court and by
the high Court, that sentence is a matter that rests in the discretion of the
trial Court. Similarly, sentence must depend on the facts of each case. On
appeal, the appellate Court will not easily interfere with sentence unless,
the sentence is manifestly excessive in the circumstances of the case, or
that the trial Court overlooked some material factor, or took into account
some wrong material, or acted on a wrong principle. Even if, the Appellate
Court might itself not have passed that sentence, these alone are not
sufficient grounds for interfering with the discretion of the trial Court on
sentence unless, anyone of the matters already states is shown to exist.”
7. It is an elementary proposition in law when it comes to the criminal justice
system and an accused person has been found guilty, duly convicted any
such sentence imposed must be proportionate to the gravity and nature of
the crime. These were the principles articulated in the persuasive case of
Mohamed Hanif vs. Emperor AIR 1942 Bom 215. That:
Criminal Misc. Application No. E021 of 2026 Page 4 of 6
In the first place, it is necessary to pass a sentence upon him which will
make him realise that a life of crime becomes increasingly hard, and does
not pay. In the second place, the sentence should serve as a warning to
others who may be thinking of adopting a criminal career. In the third place,
the public must be protected against people was show that they are going
to ignore the rules framed for the protection of society.
8. In dealing with adjudication of criminal cases involving our citizens and other
persons alike I have come to appreciate the conceptual framework of crime as
prescribed by the Court in Sato vs. State of U.P (1979) 2SCC628 that crime
is like disease, and correction, not cruelty, has dominance in the sentencing
calculus. That may be the reason why the Supreme Court in Mohammed
Giasuddin vs. Andhra Pradesh (1977) 3SCC287 made the following
observations:
If every saint has a past, every sinner has a future and it is the role
of law to remind both of this. The Indian legal genius of old has made
a healthy contribution to the world treasury of criminology. The
drawback of our criminal process is that often they are built on the
bricks of impressionist opinions and dated values, ignoring empirical
studies and deeper researches. Progressive criminologists across the
world will agree that the Gandhian diagnosis of offenders as patients
and his conception of prisons as hospitals-mental and moral-is the
key to the pathology of delinquency and the therapeutic role of
'punishment' The whole man is a healthy man and every man is born
good. Criminality is a curable deviance. The morality of the law may
vary, but is real. The basic goodness of all human beings is a spiritual
axiom, a fall-out of the advaita of cosmic creation and the spring of
correctional thought in criminology.
9. Sometime I hear words justice to the victim, justice to the society when Courts
impose what is considered appropriate sentence against an offender in the
eyes of the victim or the public. This maybe in line with the objective of
Criminal Misc. Application No. E021 of 2026 Page 5 of 6
sentence described as deterrence and retribution. It was further observed by
the Court in Hazara Singh vs. Raj Kumar (2013) 9 SCC 516. Thus:
“The punishment awarded should be directly proportionate to the
nature and the magnitude of the offence. The benchmark of
proportionate sentencing can assist the judges in arriving at a fair and
impartial verdict. This Court further observed that the cardinal
principle of sentencing policy is that the sentence imposed on an
offender should reflect the crime he has committed and it should be
proportionate to the gravity of the offence.”
10. A proper sentence is a compromise of many factors. In section 329 of the CPC
provides the Court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to the proper sentence to be passed.
11. In Kenyan law a Court can review a sentence or judgment on errors of facts
or law, or based on new evidence. The threshold requires proving an error is
apparent in the face of the record or the Applicant demonstrating that the
new evidence is crucial, admissible and could not have been found earlier
even with due diligence. This is what the Court addressed in the following
cases and applies mutatis mutandis to the facts of this case:
Tom Martins Kibisu v. Republic [2022] eKLR: The Supreme Court set
the threshold for "new and compelling evidence." It defined it as
admissible evidence of high probative value that was unavailable at trial
despite due diligence, and which would probably have led to a different
verdict or altered sentence.
Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4
Others (2014) eKLR: The Supreme Court highlighted that an Applicant
seeking review based on newly discovered evidence must strictly prove
they exercised due diligence and that the evidence was not previously in
their possession.
Hon. Mike Mbuvi Sonko v. IEBC & 3 Others [2022] eKLR: The Court
established that additional evidence cannot be used merely to fill gaps,
Criminal Misc. Application No. E021 of 2026 Page 6 of 6
plug loopholes, or fix a weak case that was already litigated.
12. From the analysis and evaluation of the evidence there is no error apparent
on the face of the record which can be corrected by this Court. The resultant
effect is to have the application dismissed as the remedy sought is not even
capable of being granted under Section 333(2) of the CPC. The motion is lost.
DATED AND DELIVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.
........................................
R. NYAKUNDI
JUDGE
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC APP. NO. E021 OF 2026
IN THE MATTER OF HCCRC. NO. E004 OF 2022 AT VIHIGA
AND
IN THE MATTER OF SECTION 323, 216, 329 CRIMINAL PROCEDURE CODE
AND
IN THE MATTERS OF ARTICLE 22, 23(1) (3), 50(2)(P), 50(2)(q), 25(c),159(1)
a,b,d, 165(3)(a) CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF PARAGRAPH 4.8, 3.2.1, 3.2.2, 3.2.3, 3.3, 3.3.1, 3.3.5
SENTENCING POLICY GUIDELINES (SPG'S) REVISED 2023. SECTION 35 OF
THE PENAL CODE
AND
IN THE MATTERS OF MURDER CASE C/S 203 AS READ WITH SECTION 204
OF THE PENAL CODE
RADON ANDANJE OMULAMA……………………………………………..APPLICANT
VERSUS
REPUBLIC……………………………………………………………………RESPONDEN
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated on 12th March 2026, the Applicant
seeks the following orders:
Criminal Misc. Application No. E021 of 2026 Page 2 of 6
a. May this Court be pleased to hear and determine this application.
b. May this Court be pleased under its discretion to reduce the Applicant's
sentence to a lesser severe sentence.
c. May this Court be pleased to make a finding that the appellant's sentence
should run from the date of his arrest
d. Spent.
e. May this Court waive any cost involved and see to it that the Applicant shall
be present at the hearing thereof.
2. Based on the grounds:
a. Rehabilitation, reformation, social re-adaptation and profusely
remorsefulness of the Applicant.
b. Old age and health status of the Applicant.
c. He is an old man of 76 years and of weak health.
d. The Applicant is a pauper and in prison.
e. More grounds in the sworn affidavit and others to be at the hearing thereof.
3. The application is supported by the annexed affidavit of Radon Andanje
Omulama who deponed as follows:
a. That, I am an adult male of sound mind hence competent to make oath and
swear this affidavit.
b. That, I was sentenced to serve 15 years in an offence of murder c/s 203 as
read with 204 of the penal code Vide HCCRC NO. E004 OF 2022 AT VIHIGA
c. That, I am stepping before this seat of justice with this humble application
requesting this Hon. Court to consider complete leniency, mercy and grace
rather than condemnation and reduce, suspend, unconditionally absolute
discharge, or give a non-custodial sentence to the Applicant as it may deem
fit.
d. That, the Applicant will suffer irreparable loss if orders sought will not be
granted.
Decision
4. The Applicant in this case upon a full trial was sentenced to 15 years
Criminal Misc. Application No. E021 of 2026 Page 3 of 6
imprisonment, he is aggrieved with sentence and has filed this petition
seeking a review of the verdict with that of a lesser term imprisonment.
5. In delving to this question I bear in mind the principles and objectives of
sentencing in a criminal offence which include inter alia:
Retribution: to satisfy the feeling of vengeance in the mind of victim and
the large number of people who share the agony of victim
Prevention: to take away from the offender the power of offending
Deterrence: to make the offender afraid of consequences, if the similar
act is repeated (intimidation) and to create awe in the minds of the
persons who are disposed to commit similar offences.
Reformation: to remove the desire of punishment from the mind of
wrongdoer.
6. Concerning the sentence under review the Court has also to take into account
the elucidative principles in the case of Bernard Gacheru vs Republic [2002]
eKLR the Court held that:
“It is now settled law, following several authorities by this Court and by
the high Court, that sentence is a matter that rests in the discretion of the
trial Court. Similarly, sentence must depend on the facts of each case. On
appeal, the appellate Court will not easily interfere with sentence unless,
the sentence is manifestly excessive in the circumstances of the case, or
that the trial Court overlooked some material factor, or took into account
some wrong material, or acted on a wrong principle. Even if, the Appellate
Court might itself not have passed that sentence, these alone are not
sufficient grounds for interfering with the discretion of the trial Court on
sentence unless, anyone of the matters already states is shown to exist.”
7. It is an elementary proposition in law when it comes to the criminal justice
system and an accused person has been found guilty, duly convicted any
such sentence imposed must be proportionate to the gravity and nature of
the crime. These were the principles articulated in the persuasive case of
Mohamed Hanif vs. Emperor AIR 1942 Bom 215. That:
Criminal Misc. Application No. E021 of 2026 Page 4 of 6
In the first place, it is necessary to pass a sentence upon him which will
make him realise that a life of crime becomes increasingly hard, and does
not pay. In the second place, the sentence should serve as a warning to
others who may be thinking of adopting a criminal career. In the third place,
the public must be protected against people was show that they are going
to ignore the rules framed for the protection of society.
8. In dealing with adjudication of criminal cases involving our citizens and other
persons alike I have come to appreciate the conceptual framework of crime as
prescribed by the Court in Sato vs. State of U.P (1979) 2SCC628 that crime
is like disease, and correction, not cruelty, has dominance in the sentencing
calculus. That may be the reason why the Supreme Court in Mohammed
Giasuddin vs. Andhra Pradesh (1977) 3SCC287 made the following
observations:
If every saint has a past, every sinner has a future and it is the role
of law to remind both of this. The Indian legal genius of old has made
a healthy contribution to the world treasury of criminology. The
drawback of our criminal process is that often they are built on the
bricks of impressionist opinions and dated values, ignoring empirical
studies and deeper researches. Progressive criminologists across the
world will agree that the Gandhian diagnosis of offenders as patients
and his conception of prisons as hospitals-mental and moral-is the
key to the pathology of delinquency and the therapeutic role of
'punishment' The whole man is a healthy man and every man is born
good. Criminality is a curable deviance. The morality of the law may
vary, but is real. The basic goodness of all human beings is a spiritual
axiom, a fall-out of the advaita of cosmic creation and the spring of
correctional thought in criminology.
9. Sometime I hear words justice to the victim, justice to the society when Courts
impose what is considered appropriate sentence against an offender in the
eyes of the victim or the public. This maybe in line with the objective of
Criminal Misc. Application No. E021 of 2026 Page 5 of 6
sentence described as deterrence and retribution. It was further observed by
the Court in Hazara Singh vs. Raj Kumar (2013) 9 SCC 516. Thus:
“The punishment awarded should be directly proportionate to the
nature and the magnitude of the offence. The benchmark of
proportionate sentencing can assist the judges in arriving at a fair and
impartial verdict. This Court further observed that the cardinal
principle of sentencing policy is that the sentence imposed on an
offender should reflect the crime he has committed and it should be
proportionate to the gravity of the offence.”
10. A proper sentence is a compromise of many factors. In section 329 of the CPC
provides the Court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to the proper sentence to be passed.
11. In Kenyan law a Court can review a sentence or judgment on errors of facts
or law, or based on new evidence. The threshold requires proving an error is
apparent in the face of the record or the Applicant demonstrating that the
new evidence is crucial, admissible and could not have been found earlier
even with due diligence. This is what the Court addressed in the following
cases and applies mutatis mutandis to the facts of this case:
Tom Martins Kibisu v. Republic [2022] eKLR: The Supreme Court set
the threshold for "new and compelling evidence." It defined it as
admissible evidence of high probative value that was unavailable at trial
despite due diligence, and which would probably have led to a different
verdict or altered sentence.
Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4
Others (2014) eKLR: The Supreme Court highlighted that an Applicant
seeking review based on newly discovered evidence must strictly prove
they exercised due diligence and that the evidence was not previously in
their possession.
Hon. Mike Mbuvi Sonko v. IEBC & 3 Others [2022] eKLR: The Court
established that additional evidence cannot be used merely to fill gaps,
Criminal Misc. Application No. E021 of 2026 Page 6 of 6
plug loopholes, or fix a weak case that was already litigated.
12. From the analysis and evaluation of the evidence there is no error apparent
on the face of the record which can be corrected by this Court. The resultant
effect is to have the application dismissed as the remedy sought is not even
capable of being granted under Section 333(2) of the CPC. The motion is lost.
DATED AND DELIVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.
........................................
R. NYAKUNDI
JUDGE