REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
MISC. CRIMINAL APPLICATION NO. E071 OF 2025
SETH INGAHU MAGAMU…………………………………………………APPLICANT
VERSUS
REPUBLIC………………………………………………………………..RESPONDENT
Coram:
Before Justice R. Nyakundi
M/s Leina Davies for the State
RULING
1. What is pending before this Honourable Court for determination is an
undated Notice of Motion Application in which the Applicant is seeking the
following orders: -
a. That this Honourable Court be pleased to review and substitute the
remaining sentence of less than 8 months’ imprisonment with a
probation order for the remaining term of the sentence in line with
Section 362 of the Criminal Procedure Code, Article 50(2)(p) of the
Constitution and the Probation of Offenders Act, Cap 64 (Laws of
Kenya).
b. Spent
c. That this Honourable Court considers the provisions of Article 159 2(d)
of the Constitution and the principles of restorative justice in making
a just and fair determination.
d. That any other order or relief that this Honourable Court may deem fit
in the interests of justice be granted.
2. The Application is made on the following grounds on the face of it among
others: -
a. That the Applicant was convicted as a first offender for attempted
defilement contrary to section 9(1) of the Sexual Offences Act No 3
of 2006.
b. That the Applicant deeply regrets and is remorseful about the
incident that led to the conviction and has demonstrated positive
rehabilitation while in custody.
1
MISC CRIMINAL APPLICATION NO E071 OF 2025
c. That the Applicant has undergone extensive rehabilitation, acquiring
skills in welding, Bible studies and spiritual nourishment, which
have reformed his character and prepared him for reintegration into
society.
d. That the Applicant has exhibited exemplary conduct in prison and
has no pending appeal against his conviction on sentence.
e. That it is in the interests of justice, fairness and proportionality in
sentencing to allow the Applicant to reintegrate into society under
appropriate supervision as envisaged under Article 27(1), (2) and 28
of the Constitution.
3. The Application is supported by the annexed Affidavit sworn by the
Applicant who deponed as follows: -
a. That I was convicted of the offence of attempted defilement contrary
to Section 9(1) of the Sexual Offences Act No 3 of 2006.
b. That I deeply regret the unfortunate incident that led to my conviction
and offer my sincere apologies to the victim, her family and society at
large as I was ignorant of the law.
c. That during my time in prison I have undergone extensive self
reflection, training in welding and rehabilitation programs that had
enabled him to reform and develop a positive outlook on life.
d. That I am a first-offender with no prior criminal record and have
maintained good conduct while in custody.
e. That I am not a threat to society, thus, sought for a second chance to
reintegrate and contribute positively to the community.
f. That it is in the interests of justice that the remaining term of my
sentence be substituted with probation under appropriate terms and
conditions.
Analysis and Determination
4. I have read and considered the Notice of Motion Application and the
supporting Affidavit thereto. There is only one issue for determination by
this Court being: -
2
MISC CRIMINAL APPLICATION NO E071 OF 2025
Whether the Application is merited?
5. Right from the onset, a perusal of the record herein indicated that the
Applicant had already applied for review before this court vide HCCR
Miscellaneous Application No E102 of 2024 Seth Ingahu Magamu Vs
Republic whereby this court delivered its Ruling on 30th October 2025.
The Applicant was seeking substantially similar orders for review and/or
reduction of sentence. The Applicant in the present Application once again
seeks substitution of the remaining custodial sentence with a non
custodial sentence under probation while relying on grounds of remorse,
rehabilitation, first offender status, good prison conduct and reintegration
into society.
6. Therefore, this court did not have the jurisdiction to hear and determine
his application a second time as that would amount to sitting on appeal of
its own decision as this court had equal and competent jurisdiction to the
Judge who had already determine his aforesaid application for review.
7. In view of the above findings the application before this Court is now res
judicata. The doctrine of res judicata is based on the principle of finality
which is a matter of public policy. The principle of finality is one of the
pillars upon which our judicial system is founded and the doctrine of res
judicata prevents a multiplicity of suits, which would ordinarily clog the
Courts, apart from occasioning unnecessary costs to the parties; and it
ensures that litigation comes to an end and the verdict duly translates into
fruit for one party, and liability for another party conclusively.
8. In pari materia in construing this application, I am persuaded to import
the provisions of civil law under Section 7 of the Civil Procedure Act which
states as follows: -
"No court shall, try, any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same
title in a court competent to try such subsequent suit or issue in
3
MISC CRIMINAL APPLICATION NO E071 OF 2025
which such issue has been subsequently raised, and has been
heard and finally decided by such court.”
9. The Supreme Court in the case of Kenya Commercial Bank Limited Vs
Muiri Coffee Estate Limited & Another [2016] eKLR (Muiri Coffee case)
held as follows regarding the doctrine of res judicata: -
We restate the elements that must be proven before a court may arrive at
the conclusion that a matter is res judicata. For res judicata to be invoked
in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction
over the subject matter and the parties; and
d) There must be between the first and the second action identical
parties, subject matter and cause of action
10. Moreover, the Apex Court held as follows regarding the doctrine of res
judicata: -
Res judicata is a doctrine of substantive law, its essence being that once
the legal rights of parties have been judicially determined, such edict
stands as a conclusive statement as to those rights. It would appear that
the doctrine of res judicata is to apply in respect of matters of all
categories, including issues of constitutional rights. Such a perception
has a basis in comparative jurisprudence; in the Ugandan case of Hon.
Norbert Mao v. Attorney-General, Constitutional Petition No. 9 of
2002; [2003] UGCC3.
11. Although the doctrine is codified under civil procedure, courts have
consistently held that the principle equally applies to constitutional,
judicial review and criminal proceedings where circumstances demand so
in order to prevent abuse of the court process and endless litigation. The
rationale behind the doctrine is founded on public policy that litigation
must come to an end. A party ought not to be permitted to re-open issues
that have already been conclusively determined by a competent court
4
MISC CRIMINAL APPLICATION NO E071 OF 2025
merely by filing another application couched in different language but
seeking substantially similar reliefs.
12. Applying the foregoing principles to the present Application, this Court
notes that the Applicant herein is the same Applicant in Seth Ingahu
Magamu Vs Republic. The Respondent remains the Republic. The issue
for determination in both Applications relates to review and/or reduction
of the custodial sentence imposed upon the Applicant following conviction
for the offence of attempted defilement contrary to Section 9(1) of the
Sexual Offences Act.
13. Further, the grounds advanced in the present Application substantially
mirror those raised in the previous Application. The Applicant once again
relies on remorsefulness, rehabilitation, first offender status, prison
reform, good conduct and the need for reintegration into society. These are
matters that were either considered or ought to have been raised in the
earlier proceedings. This Court cannot sit endlessly to rehear and re
determine issues that have already been conclusively adjudicated upon.
To permit such practice would not only amount to abuse of the court
process but would also offend the principle of finality in litigation. The
Applicant has attempted to invoke Sections 362 of the Criminal Procedure
Code, Article 50(2)(p) of the Constitution, Article 159(2)(d) of the
Constitution and the Probation of Offenders Act. However, constitutional
and statutory provisions cannot be invoked as a mechanism for re
litigating matters that have already been determined by a competent court.
14. Moreover, Section 362 of the Criminal Procedure Code grants this Court
revisionary jurisdiction over proceedings of subordinate courts for
purposes of satisfying itself as to the correctness, legality or propriety of
any finding, sentence or order. The said provision does not donate
jurisdiction to this Court to repeatedly reconsider applications for sentence
review that it has already determined. Equally, Article 159(2)(d) of the
Constitution cannot be invoked to defeat substantive legal doctrines such
as res judicata. The provision was never intended to aid repetitive litigation
or to sanitize abuse of the court process. While this Court appreciates the
5
MISC CRIMINAL APPLICATION NO E071 OF 2025
Applicant’s assertion that he has undergone rehabilitation and acquired
vocational and spiritual skills while in custody, such considerations
cannot override settled principles of law. Courts are obligated to balance
the rights of applicants with the equally important principles of certainty,
finality and orderly administration of justice.
15. Consequently, I find and hold that the present Application is res judicata.
In the premises, the undated Notice of Motion Application lacks merit and
is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026
IN THE HIGH COURT AT VIHIGA
MISC. CRIMINAL APPLICATION NO. E071 OF 2025
SETH INGAHU MAGAMU…………………………………………………APPLICANT
VERSUS
REPUBLIC………………………………………………………………..RESPONDENT
Coram:
Before Justice R. Nyakundi
M/s Leina Davies for the State
RULING
1. What is pending before this Honourable Court for determination is an
undated Notice of Motion Application in which the Applicant is seeking the
following orders: -
a. That this Honourable Court be pleased to review and substitute the
remaining sentence of less than 8 months’ imprisonment with a
probation order for the remaining term of the sentence in line with
Section 362 of the Criminal Procedure Code, Article 50(2)(p) of the
Constitution and the Probation of Offenders Act, Cap 64 (Laws of
Kenya).
b. Spent
c. That this Honourable Court considers the provisions of Article 159 2(d)
of the Constitution and the principles of restorative justice in making
a just and fair determination.
d. That any other order or relief that this Honourable Court may deem fit
in the interests of justice be granted.
2. The Application is made on the following grounds on the face of it among
others: -
a. That the Applicant was convicted as a first offender for attempted
defilement contrary to section 9(1) of the Sexual Offences Act No 3
of 2006.
b. That the Applicant deeply regrets and is remorseful about the
incident that led to the conviction and has demonstrated positive
rehabilitation while in custody.
1
MISC CRIMINAL APPLICATION NO E071 OF 2025
c. That the Applicant has undergone extensive rehabilitation, acquiring
skills in welding, Bible studies and spiritual nourishment, which
have reformed his character and prepared him for reintegration into
society.
d. That the Applicant has exhibited exemplary conduct in prison and
has no pending appeal against his conviction on sentence.
e. That it is in the interests of justice, fairness and proportionality in
sentencing to allow the Applicant to reintegrate into society under
appropriate supervision as envisaged under Article 27(1), (2) and 28
of the Constitution.
3. The Application is supported by the annexed Affidavit sworn by the
Applicant who deponed as follows: -
a. That I was convicted of the offence of attempted defilement contrary
to Section 9(1) of the Sexual Offences Act No 3 of 2006.
b. That I deeply regret the unfortunate incident that led to my conviction
and offer my sincere apologies to the victim, her family and society at
large as I was ignorant of the law.
c. That during my time in prison I have undergone extensive self
reflection, training in welding and rehabilitation programs that had
enabled him to reform and develop a positive outlook on life.
d. That I am a first-offender with no prior criminal record and have
maintained good conduct while in custody.
e. That I am not a threat to society, thus, sought for a second chance to
reintegrate and contribute positively to the community.
f. That it is in the interests of justice that the remaining term of my
sentence be substituted with probation under appropriate terms and
conditions.
Analysis and Determination
4. I have read and considered the Notice of Motion Application and the
supporting Affidavit thereto. There is only one issue for determination by
this Court being: -
2
MISC CRIMINAL APPLICATION NO E071 OF 2025
Whether the Application is merited?
5. Right from the onset, a perusal of the record herein indicated that the
Applicant had already applied for review before this court vide HCCR
Miscellaneous Application No E102 of 2024 Seth Ingahu Magamu Vs
Republic whereby this court delivered its Ruling on 30th October 2025.
The Applicant was seeking substantially similar orders for review and/or
reduction of sentence. The Applicant in the present Application once again
seeks substitution of the remaining custodial sentence with a non
custodial sentence under probation while relying on grounds of remorse,
rehabilitation, first offender status, good prison conduct and reintegration
into society.
6. Therefore, this court did not have the jurisdiction to hear and determine
his application a second time as that would amount to sitting on appeal of
its own decision as this court had equal and competent jurisdiction to the
Judge who had already determine his aforesaid application for review.
7. In view of the above findings the application before this Court is now res
judicata. The doctrine of res judicata is based on the principle of finality
which is a matter of public policy. The principle of finality is one of the
pillars upon which our judicial system is founded and the doctrine of res
judicata prevents a multiplicity of suits, which would ordinarily clog the
Courts, apart from occasioning unnecessary costs to the parties; and it
ensures that litigation comes to an end and the verdict duly translates into
fruit for one party, and liability for another party conclusively.
8. In pari materia in construing this application, I am persuaded to import
the provisions of civil law under Section 7 of the Civil Procedure Act which
states as follows: -
"No court shall, try, any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same
title in a court competent to try such subsequent suit or issue in
3
MISC CRIMINAL APPLICATION NO E071 OF 2025
which such issue has been subsequently raised, and has been
heard and finally decided by such court.”
9. The Supreme Court in the case of Kenya Commercial Bank Limited Vs
Muiri Coffee Estate Limited & Another [2016] eKLR (Muiri Coffee case)
held as follows regarding the doctrine of res judicata: -
We restate the elements that must be proven before a court may arrive at
the conclusion that a matter is res judicata. For res judicata to be invoked
in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction
over the subject matter and the parties; and
d) There must be between the first and the second action identical
parties, subject matter and cause of action
10. Moreover, the Apex Court held as follows regarding the doctrine of res
judicata: -
Res judicata is a doctrine of substantive law, its essence being that once
the legal rights of parties have been judicially determined, such edict
stands as a conclusive statement as to those rights. It would appear that
the doctrine of res judicata is to apply in respect of matters of all
categories, including issues of constitutional rights. Such a perception
has a basis in comparative jurisprudence; in the Ugandan case of Hon.
Norbert Mao v. Attorney-General, Constitutional Petition No. 9 of
2002; [2003] UGCC3.
11. Although the doctrine is codified under civil procedure, courts have
consistently held that the principle equally applies to constitutional,
judicial review and criminal proceedings where circumstances demand so
in order to prevent abuse of the court process and endless litigation. The
rationale behind the doctrine is founded on public policy that litigation
must come to an end. A party ought not to be permitted to re-open issues
that have already been conclusively determined by a competent court
4
MISC CRIMINAL APPLICATION NO E071 OF 2025
merely by filing another application couched in different language but
seeking substantially similar reliefs.
12. Applying the foregoing principles to the present Application, this Court
notes that the Applicant herein is the same Applicant in Seth Ingahu
Magamu Vs Republic. The Respondent remains the Republic. The issue
for determination in both Applications relates to review and/or reduction
of the custodial sentence imposed upon the Applicant following conviction
for the offence of attempted defilement contrary to Section 9(1) of the
Sexual Offences Act.
13. Further, the grounds advanced in the present Application substantially
mirror those raised in the previous Application. The Applicant once again
relies on remorsefulness, rehabilitation, first offender status, prison
reform, good conduct and the need for reintegration into society. These are
matters that were either considered or ought to have been raised in the
earlier proceedings. This Court cannot sit endlessly to rehear and re
determine issues that have already been conclusively adjudicated upon.
To permit such practice would not only amount to abuse of the court
process but would also offend the principle of finality in litigation. The
Applicant has attempted to invoke Sections 362 of the Criminal Procedure
Code, Article 50(2)(p) of the Constitution, Article 159(2)(d) of the
Constitution and the Probation of Offenders Act. However, constitutional
and statutory provisions cannot be invoked as a mechanism for re
litigating matters that have already been determined by a competent court.
14. Moreover, Section 362 of the Criminal Procedure Code grants this Court
revisionary jurisdiction over proceedings of subordinate courts for
purposes of satisfying itself as to the correctness, legality or propriety of
any finding, sentence or order. The said provision does not donate
jurisdiction to this Court to repeatedly reconsider applications for sentence
review that it has already determined. Equally, Article 159(2)(d) of the
Constitution cannot be invoked to defeat substantive legal doctrines such
as res judicata. The provision was never intended to aid repetitive litigation
or to sanitize abuse of the court process. While this Court appreciates the
5
MISC CRIMINAL APPLICATION NO E071 OF 2025
Applicant’s assertion that he has undergone rehabilitation and acquired
vocational and spiritual skills while in custody, such considerations
cannot override settled principles of law. Courts are obligated to balance
the rights of applicants with the equally important principles of certainty,
finality and orderly administration of justice.
15. Consequently, I find and hold that the present Application is res judicata.
In the premises, the undated Notice of Motion Application lacks merit and
is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026