Ruling in CriRev App E006 of 2026 R Vs Stephen Ekeya
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL REVISION NO. E006 OF 2026
STEPHEN EKEYA............................................................................................................ APPLICANT
VERSUS
REPUBLIC................................................................................................................... RESPONDENT
RULING
A. INTRODUCTION
1. Before this Court for determination is the Notice of Motion dated 22nd April 2026 brought by the Applicant, Stephen Ekeya , through his counsel, M/S Okeyo Ochiel & Co. Advocates.
2. The application is brought under the provisions of Articles 50(2) and 25(c) of the Constitution of Kenya , and Sections 362, 364, and 365 of the Criminal Procedure Code (Cap 75) .
3. The Applicant seeks to invoke the supervisory and revisionary jurisdiction of this Court to call for, examine, and revise the sentence of fifteen (15) years imprisonment imposed upon him in HCCRA No. 5 of 2019 (Busia) . The Applicant has been in custody since 2019 serving the said sentence.
B. THE APPLICANT’S CASE
4. The application is supported by the grounds on the face of the motion and the Applicant’s Supporting Affidavit sworn on 22 nd April 2026 . The Applicant’s core grievance is that the sentence of fifteen (15) years imprisonment for the offense of manslaughter is manifestly harsh, excessive, and that the sentencing court failed to give due weight to his mitigation, personal circumstances, remorse, and clean past record as a first-time offender.
5. Crucially, both in his pleadings and the supporting affidavit, the Applicant explicitly concedes to a fundamental procedural history: his conviction and sentence were already subjected to a 1 st Appeal in HCCRA No. 5 of 2019 at the High Court (Busia) , and a subsequent 2 nd Appeal in Criminal Appeal No. E035 of 2020 at the Court of Appeal sitting in Kisumu , where the sentence was formally upheld.
6. Despite this, he argues that the sentence remains disproportionate given that the maximum penalty provided under the law for manslaughter is life imprisonment, leaving a wide range of judicial discretion that should be exercised in his favor.
7. On 27 th April 2026 , this Court issued specific directions requiring the Notice of Motion to be served upon the Respondent (the Office of the Director of Public Prosecutions). The Respondent was directed to file a response within fourteen (14) days of service.
8. Court records and the Affidavit of Service sworn by Stephen Otaget Ofula on 20 th May 2026 confirm that the Respondent was duly served on 18 th May 2026 and accepted service.
9. Per the court’s timeline, the Applicant was mandated to file written submissions within twenty-eight (28) days from the date of the directions, and the Respondent was to file its submissions within thirty-five (35) days.
10. Strikingly, despite the court directions being regular and properly served, neither the Applicant nor the Respondent filed any written submissions within the designated windows or at all. The parties effectively abandoned their duty to assist the court through structured legal arguments. Be that as it may, the lack of submissions does not strip the court of its duty to determine the matter on the basis of the hard law and facts presented within the core pleadings.
C. ISSUES FOR DETERMINATION
11. Having evaluated the Notice of Motion and the supporting affidavit, this Court identifies two interrelated jurisdictional questions that must resolve this matter:
I. Whether this Court has the jurisdiction to entertain a revision application where a matter has been heard and determined on a first and second appeal.
II. Whether the application is barred by the doctrine of res judicata.
D. LAW AND ANALYSIS
i. Want of Jurisdiction
12. The Applicant invites this Court to utilize its supervisory and revisionary powers under Sections 362 and 364 of the Criminal Procedure Code . Section 362 empowers the High Court to call for and examine the records of any criminal proceedings before subordinate courts to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order.
13. The limitation of revisionary power is foundational: it operates vertically, from a higher court reviewing a lower court. In this instance, the sentence the Applicant wants this Court to revise is a sentence that has already been subjected to the rigorous appellate review of both the High Court and the Court of Appeal .
14. The Court of Appeal is a superior court of record positioned hierarchically above the High Court.
15. Once the Court of Appeal in Criminal Appeal No. E035 of 2020 examined the case and upheld the 15-year sentence, that determination became the final operational decree on the matter.
16. This High Court has absolutely no legal capacity, residual mandate, or jurisdiction to sit on appeal or revision over a final pronouncement of the Court of Appeal. To do so would be a catastrophic violation of the doctrine of stare decisis and hierarchical judicial discipline.
ii. Res Judicata
17. The concession by the Applicant that his sentence was litigated through a 1 st and 2 nd Appeal automatically invokes the doctrine of res judicata .
18. In criminal jurisprudence, this is mirrored in the public policy principle that, there must be an end to litigation, and an individual cannot repeatedly litigate the exact same cause of action or sentence once it has been conclusively determined by a court of competent jurisdiction.
19. The legality, propriety, and fairness of the Applicant’s 15-year sentence were the proper subjects of his appeals to the High Court and the Court of Appeal.
20. He cannot now re-package his dissatisfaction with the length of the sentence under the guise of a "Revision Application" to compel the High Court to re-open a closed chapter. The matter is completely res judicata .
D. CONCLUSION
21. While the court notes the Applicant’s argument regarding the maximum penalty of life imprisonment and his plea for mitigation based on rehabilitation, such arguments can only be raised before a proper appellate forum with the requisite jurisdiction.
22. This Court's hands are tied by the absolute lack of jurisdiction to alter a sentence affirmed by a superior court, and the application is legally dead on arrival under the weight of res judicata .
E. FINAL ORDERS
23. Consequently the Criminal Revision Application dated 22 nd April 2026 is hereby DISMISSED in its entirety for want of jurisdiction and on the basis of res judicata .
It is so Ordered
Signed, Dated, and Delivered virtually at Busia
On this 25 th day of June 2026.
___________________________________
MOHOCHI S.M
PRESIDING JUDGE
2
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL REVISION NO. E006 OF 2026
STEPHEN EKEYA............................................................................................................ APPLICANT
VERSUS
REPUBLIC................................................................................................................... RESPONDENT
RULING
A. INTRODUCTION
1. Before this Court for determination is the Notice of Motion dated 22nd April 2026 brought by the Applicant, Stephen Ekeya , through his counsel, M/S Okeyo Ochiel & Co. Advocates.
2. The application is brought under the provisions of Articles 50(2) and 25(c) of the Constitution of Kenya , and Sections 362, 364, and 365 of the Criminal Procedure Code (Cap 75) .
3. The Applicant seeks to invoke the supervisory and revisionary jurisdiction of this Court to call for, examine, and revise the sentence of fifteen (15) years imprisonment imposed upon him in HCCRA No. 5 of 2019 (Busia) . The Applicant has been in custody since 2019 serving the said sentence.
B. THE APPLICANT’S CASE
4. The application is supported by the grounds on the face of the motion and the Applicant’s Supporting Affidavit sworn on 22 nd April 2026 . The Applicant’s core grievance is that the sentence of fifteen (15) years imprisonment for the offense of manslaughter is manifestly harsh, excessive, and that the sentencing court failed to give due weight to his mitigation, personal circumstances, remorse, and clean past record as a first-time offender.
5. Crucially, both in his pleadings and the supporting affidavit, the Applicant explicitly concedes to a fundamental procedural history: his conviction and sentence were already subjected to a 1 st Appeal in HCCRA No. 5 of 2019 at the High Court (Busia) , and a subsequent 2 nd Appeal in Criminal Appeal No. E035 of 2020 at the Court of Appeal sitting in Kisumu , where the sentence was formally upheld.
6. Despite this, he argues that the sentence remains disproportionate given that the maximum penalty provided under the law for manslaughter is life imprisonment, leaving a wide range of judicial discretion that should be exercised in his favor.
7. On 27 th April 2026 , this Court issued specific directions requiring the Notice of Motion to be served upon the Respondent (the Office of the Director of Public Prosecutions). The Respondent was directed to file a response within fourteen (14) days of service.
8. Court records and the Affidavit of Service sworn by Stephen Otaget Ofula on 20 th May 2026 confirm that the Respondent was duly served on 18 th May 2026 and accepted service.
9. Per the court’s timeline, the Applicant was mandated to file written submissions within twenty-eight (28) days from the date of the directions, and the Respondent was to file its submissions within thirty-five (35) days.
10. Strikingly, despite the court directions being regular and properly served, neither the Applicant nor the Respondent filed any written submissions within the designated windows or at all. The parties effectively abandoned their duty to assist the court through structured legal arguments. Be that as it may, the lack of submissions does not strip the court of its duty to determine the matter on the basis of the hard law and facts presented within the core pleadings.
C. ISSUES FOR DETERMINATION
11. Having evaluated the Notice of Motion and the supporting affidavit, this Court identifies two interrelated jurisdictional questions that must resolve this matter:
I. Whether this Court has the jurisdiction to entertain a revision application where a matter has been heard and determined on a first and second appeal.
II. Whether the application is barred by the doctrine of res judicata.
D. LAW AND ANALYSIS
i. Want of Jurisdiction
12. The Applicant invites this Court to utilize its supervisory and revisionary powers under Sections 362 and 364 of the Criminal Procedure Code . Section 362 empowers the High Court to call for and examine the records of any criminal proceedings before subordinate courts to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order.
13. The limitation of revisionary power is foundational: it operates vertically, from a higher court reviewing a lower court. In this instance, the sentence the Applicant wants this Court to revise is a sentence that has already been subjected to the rigorous appellate review of both the High Court and the Court of Appeal .
14. The Court of Appeal is a superior court of record positioned hierarchically above the High Court.
15. Once the Court of Appeal in Criminal Appeal No. E035 of 2020 examined the case and upheld the 15-year sentence, that determination became the final operational decree on the matter.
16. This High Court has absolutely no legal capacity, residual mandate, or jurisdiction to sit on appeal or revision over a final pronouncement of the Court of Appeal. To do so would be a catastrophic violation of the doctrine of stare decisis and hierarchical judicial discipline.
ii. Res Judicata
17. The concession by the Applicant that his sentence was litigated through a 1 st and 2 nd Appeal automatically invokes the doctrine of res judicata .
18. In criminal jurisprudence, this is mirrored in the public policy principle that, there must be an end to litigation, and an individual cannot repeatedly litigate the exact same cause of action or sentence once it has been conclusively determined by a court of competent jurisdiction.
19. The legality, propriety, and fairness of the Applicant’s 15-year sentence were the proper subjects of his appeals to the High Court and the Court of Appeal.
20. He cannot now re-package his dissatisfaction with the length of the sentence under the guise of a "Revision Application" to compel the High Court to re-open a closed chapter. The matter is completely res judicata .
D. CONCLUSION
21. While the court notes the Applicant’s argument regarding the maximum penalty of life imprisonment and his plea for mitigation based on rehabilitation, such arguments can only be raised before a proper appellate forum with the requisite jurisdiction.
22. This Court's hands are tied by the absolute lack of jurisdiction to alter a sentence affirmed by a superior court, and the application is legally dead on arrival under the weight of res judicata .
E. FINAL ORDERS
23. Consequently the Criminal Revision Application dated 22 nd April 2026 is hereby DISMISSED in its entirety for want of jurisdiction and on the basis of res judicata .
It is so Ordered
Signed, Dated, and Delivered virtually at Busia
On this 25 th day of June 2026.
___________________________________
MOHOCHI S.M
PRESIDING JUDGE
2