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1. The applicant filed a notice of motion application seeking the following orders that;
a. Spent
b. Spent
c. The court invokes Section 35 of the Penal Code under paragraph 2.10.1 upto 2.10.7 of the Judiciary Sentencing Guidelines (2023) hence the entire time the applicant had already served since he was deprive of his liberty be sufficient punishment and award him absolute discharge or conditional or any other order deem fit.
2. The application is supported by the grounds that he was convicted on 17/5/2017 and upto date he has served a period of 7 years 7months. He has another 2 years 4 months remaining on his sentence; he is a first offender and expresses remorse.
3. The facts of the case are that the applicant was charged with the offence of defilement contrary to Section 8(1) read together with Section 8(4) of the Sexual Offences Act. He pleaded not guilty but after a full trial. the trail court proceeded to find him guilty and sentenced him to serve 15 years imprisonment on the 15/11/2017.
4. Dissatisfied with the conviction and sentence he appealed to the High Court vide Criminal No. 27 of 2018 but the appeal was dismissed. The High Court found no reason to interfere with the sentence.
5. The Respondent opposed the application arguing that it amounts to a resentencing request which is not permissible since the sentence was upheld on appeal in High Court Criminal Appeal no.27 of 2018. They asserted that the court is functus officio. That this court has no jurisdiction as it is functus officio.
6. They further noted that the applicant received the minimum sentence prescribed for the offence and urged the court to dismissed the application.
7. In response to the applicant pleaded for leniency while emphasizing that he has only 3 years remaining before concluding his sentence term.
8. The applicant relies on Section 35 of the Penal Code and paragraph 2.10.1 upto 2.10.7 of the Judiciary Sentencing Guidelines which allow for absolute or conditional discharge where punishment is deemed inexpedient and probation unsuitable. This Section also provides for the conditions to be met before the order can be given by the court. However, the applicant’s case does not meet the criteria for discharge under the provisions of Section 35 of the Penal Code. This is further buttressed by the Sentencing Guidelines which further reinforce the limited circumstances under which section 35 of the Penal code may be applied. .
9. This court also notes that the appellants'' appeal at the High Court was heard and determined. It would therefore be illegal and unconstitutional for this court to revisit a decision of a court of concurrent jurisdiction.
10. Thus, I find that this court is functus officio and therefore lacks jurisdiction to grant the orders sought. Application is dismissed.
Dated, signed and delivered at Machakos this 9th day of October 2025.
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1. The applicant filed a notice of motion application seeking the following orders that;
a. Spent
b. Spent
c. The court invokes Section 35 of the Penal Code under paragraph 2.10.1 upto 2.10.7 of the Judiciary Sentencing Guidelines (2023) hence the entire time the applicant had already served since he was deprive of his liberty be sufficient punishment and award him absolute discharge or conditional or any other order deem fit.
2. The application is supported by the grounds that he was convicted on 17/5/2017 and upto date he has served a period of 7 years 7months. He has another 2 years 4 months remaining on his sentence; he is a first offender and expresses remorse.
3. The facts of the case are that the applicant was charged with the offence of defilement contrary to Section 8(1) read together with Section 8(4) of the Sexual Offences Act. He pleaded not guilty but after a full trial. the trail court proceeded to find him guilty and sentenced him to serve 15 years imprisonment on the 15/11/2017.
4. Dissatisfied with the conviction and sentence he appealed to the High Court vide Criminal No. 27 of 2018 but the appeal was dismissed. The High Court found no reason to interfere with the sentence.
5. The Respondent opposed the application arguing that it amounts to a resentencing request which is not permissible since the sentence was upheld on appeal in High Court Criminal Appeal no.27 of 2018. They asserted that the court is functus officio. That this court has no jurisdiction as it is functus officio.
6. They further noted that the applicant received the minimum sentence prescribed for the offence and urged the court to dismissed the application.
7. In response to the applicant pleaded for leniency while emphasizing that he has only 3 years remaining before concluding his sentence term.
8. The applicant relies on Section 35 of the Penal Code and paragraph 2.10.1 upto 2.10.7 of the Judiciary Sentencing Guidelines which allow for absolute or conditional discharge where punishment is deemed inexpedient and probation unsuitable. This Section also provides for the conditions to be met before the order can be given by the court. However, the applicant’s case does not meet the criteria for discharge under the provisions of Section 35 of the Penal Code. This is further buttressed by the Sentencing Guidelines which further reinforce the limited circumstances under which section 35 of the Penal code may be applied. .
9. This court also notes that the appellants'' appeal at the High Court was heard and determined. It would therefore be illegal and unconstitutional for this court to revisit a decision of a court of concurrent jurisdiction.
10. Thus, I find that this court is functus officio and therefore lacks jurisdiction to grant the orders sought. Application is dismissed.
Dated, signed and delivered at Machakos this 9th day of October 2025.
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