1. By an undated Notice of Motion, the petitioner seeks for the following reliefs:
1. … Spent;
2. THAT this Honourable Court be pleased to find it within the law by dint of Article 50 (1) of the Constitution to fashion a remedy in the circumstances of this case in enforcing the law to resolve the dispute of sentence within the fiat of Article 159 of the Constitution in its jurisdiction under Article 165 of the Constitution;
3. THAT this Honourable Court be pleased to find that as a matter of law, the High Court has jurisdiction to order for the resentence of the petitioner herein although the Court of Appeal has rendered a verdict in respect of his case, as an affirmative action designed to redress the disadvantage suffered by him during determination of his appeal by the Court of Appeal, which has since pronounced itself on what life imprisonment ought to mean in law at the highest in terms of years;
4. THAT this Honourable Court be pleased to overturn the decision of the appellate court only on sentence, and order to resentence the petitioner to a term sentence in order to reconcile the sentence imposed considering the law applicable within the threshold of clause 7 (1) of the sixth schedule of the Constitution;
5. THAT this Honourable Court be pleased to invoke its jurisdiction in its mandate under Article 20 of the Constitution to address needs of the petitioner herein by determining the right sentence to impose in light of the recently developed sentencing laws by the Court of Appeal as a remedy to past discrimination during determination of his sentence by the trial court and the appellate court within the meaning of Article 27 (6) of the Constitution;
6. Such other orders that the court may deem fair and just.
2. The application is supported by grounds on its face and the petitioner’s supporting affidavit. The petitioner, was convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act in Machakos Criminal Case No. 1407 of 2013 and sentenced to life imprisonment. He appealed to the High Court and the appeal was dismissed and sentence upheld on 17th September 2018. He appealed to the Court of Appeal which upheld both the conviction and sentence on 9th February 2024.
3. The petitioner now urges this court to resentence him, arguing that it has jurisdiction to review orders where violation of the bill of rights has occasioned a miscarriage of justice. He relies on constitutional provisions and judicial precedents to fortify his position.
4. During the hearing, the petitioner pressed for reconsideration of his sentence and sought a determinate term. On the other hand, Ms. Musango, learned counsel for the State, outlined the procedural history and urged dismissal of the application, contending that it is res judicata and amounts to an abuse of the court process.
5. The facts as established by the parties before me are that the petitioner was charged and convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act in Machakos CMCR No. 1407 of 2013 on 29th October 2014. He was sentenced to life imprisonment. Aggrieved by those findings, the petitioner filed before the High Court at Machakos HCCRA No. 216 of 2014. That appeal was dismissed on 17th September 2018 and the conviction and sentence upheld.
6. Thereafter, the petitioner filed before the Machakos High Court, Misc. Criminal Application no. E097 of 2019 where he sought resentencing. By ruling dated 28th November 2019, that application was dismissed. Unrelenting, the petitioner filed Machakos HC Misc. Criminal App. No. E036 of 2024 which mirrored, word for word, the prayers sought in the present application, essentially seeking resentencing. The application was dismissed on 18th November 2024.
7. It is also discernible from the ruling dated 18th November 2024, as well as the petitioner’s depositions, that the petitioner lodged an appeal before the Court of Appeal. the appeal to the Court of Appeal was dismissed on 9th February 2024 affirming both conviction and sentence.
8. It is evident that the petitioner has persistently filed applications seeking identical reliefs, despite clear determinations by both the High Court and the Court of Appeal. This conduct demonstrates an attempt to exploit judicial transfers and re-litigate matters already conclusively determined. The petitioner is abusing the process of this court.
9. This application, as rightly pointed out by the respondent, is res judicata. This court is functus officio in respect of the petitioner’s conviction and sentence. The Court of Appeal, being the superior appellate court, has conclusively pronounced itself on the matter. The High Court cannot purport to overturn or vary that decision under the guise of resentencing.
10. In, Okwanyo vs. Republic [2025] KEHC 11897 (KLR), this court reaffirmed that res judicata applies to criminal proceedings to bar repetitive litigation. The present application squarely offends that doctrine. The court observed and this court adopts the same approach:
“This application offends the doctrine of res judicata whose legal foundation is in in the realm of civil law but applies in the administration of justice mutatis mutandis to the criminal law branch. The doctrine of res judicata also known as claim preclusion applies in criminal cases to prevent the re litigation of a previously decided matter. Essentially, once a criminal cased has been fully and fairly adjudicated, the same parties cannot bring the same charges or claims against each other again. This principle ensures finality in legal proceedings and prevents harassment through repeated litigation.
11. The petitioner’s repeated applications amount to an abuse of the court process. His conduct is vexatious and undermines the integrity of judicial proceedings. This court strongly cautions the petitioner against filing further duplicative applications, as they serve no purpose other than to waste judicial time.
12. Accordingly, the petitioner’s undated Notice of Motion is hereby dismissed for lack of merit.
Dated and delivered at Machakos this 22nd day of January 2026
1. … Spent;
2. THAT this Honourable Court be pleased to find it within the law by dint of Article 50 (1) of the Constitution to fashion a remedy in the circumstances of this case in enforcing the law to resolve the dispute of sentence within the fiat of Article 159 of the Constitution in its jurisdiction under Article 165 of the Constitution;
3. THAT this Honourable Court be pleased to find that as a matter of law, the High Court has jurisdiction to order for the resentence of the petitioner herein although the Court of Appeal has rendered a verdict in respect of his case, as an affirmative action designed to redress the disadvantage suffered by him during determination of his appeal by the Court of Appeal, which has since pronounced itself on what life imprisonment ought to mean in law at the highest in terms of years;
4. THAT this Honourable Court be pleased to overturn the decision of the appellate court only on sentence, and order to resentence the petitioner to a term sentence in order to reconcile the sentence imposed considering the law applicable within the threshold of clause 7 (1) of the sixth schedule of the Constitution;
5. THAT this Honourable Court be pleased to invoke its jurisdiction in its mandate under Article 20 of the Constitution to address needs of the petitioner herein by determining the right sentence to impose in light of the recently developed sentencing laws by the Court of Appeal as a remedy to past discrimination during determination of his sentence by the trial court and the appellate court within the meaning of Article 27 (6) of the Constitution;
6. Such other orders that the court may deem fair and just.
2. The application is supported by grounds on its face and the petitioner’s supporting affidavit. The petitioner, was convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act in Machakos Criminal Case No. 1407 of 2013 and sentenced to life imprisonment. He appealed to the High Court and the appeal was dismissed and sentence upheld on 17th September 2018. He appealed to the Court of Appeal which upheld both the conviction and sentence on 9th February 2024.
3. The petitioner now urges this court to resentence him, arguing that it has jurisdiction to review orders where violation of the bill of rights has occasioned a miscarriage of justice. He relies on constitutional provisions and judicial precedents to fortify his position.
4. During the hearing, the petitioner pressed for reconsideration of his sentence and sought a determinate term. On the other hand, Ms. Musango, learned counsel for the State, outlined the procedural history and urged dismissal of the application, contending that it is res judicata and amounts to an abuse of the court process.
5. The facts as established by the parties before me are that the petitioner was charged and convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act in Machakos CMCR No. 1407 of 2013 on 29th October 2014. He was sentenced to life imprisonment. Aggrieved by those findings, the petitioner filed before the High Court at Machakos HCCRA No. 216 of 2014. That appeal was dismissed on 17th September 2018 and the conviction and sentence upheld.
6. Thereafter, the petitioner filed before the Machakos High Court, Misc. Criminal Application no. E097 of 2019 where he sought resentencing. By ruling dated 28th November 2019, that application was dismissed. Unrelenting, the petitioner filed Machakos HC Misc. Criminal App. No. E036 of 2024 which mirrored, word for word, the prayers sought in the present application, essentially seeking resentencing. The application was dismissed on 18th November 2024.
7. It is also discernible from the ruling dated 18th November 2024, as well as the petitioner’s depositions, that the petitioner lodged an appeal before the Court of Appeal. the appeal to the Court of Appeal was dismissed on 9th February 2024 affirming both conviction and sentence.
8. It is evident that the petitioner has persistently filed applications seeking identical reliefs, despite clear determinations by both the High Court and the Court of Appeal. This conduct demonstrates an attempt to exploit judicial transfers and re-litigate matters already conclusively determined. The petitioner is abusing the process of this court.
9. This application, as rightly pointed out by the respondent, is res judicata. This court is functus officio in respect of the petitioner’s conviction and sentence. The Court of Appeal, being the superior appellate court, has conclusively pronounced itself on the matter. The High Court cannot purport to overturn or vary that decision under the guise of resentencing.
10. In, Okwanyo vs. Republic [2025] KEHC 11897 (KLR), this court reaffirmed that res judicata applies to criminal proceedings to bar repetitive litigation. The present application squarely offends that doctrine. The court observed and this court adopts the same approach:
“This application offends the doctrine of res judicata whose legal foundation is in in the realm of civil law but applies in the administration of justice mutatis mutandis to the criminal law branch. The doctrine of res judicata also known as claim preclusion applies in criminal cases to prevent the re litigation of a previously decided matter. Essentially, once a criminal cased has been fully and fairly adjudicated, the same parties cannot bring the same charges or claims against each other again. This principle ensures finality in legal proceedings and prevents harassment through repeated litigation.
11. The petitioner’s repeated applications amount to an abuse of the court process. His conduct is vexatious and undermines the integrity of judicial proceedings. This court strongly cautions the petitioner against filing further duplicative applications, as they serve no purpose other than to waste judicial time.
12. Accordingly, the petitioner’s undated Notice of Motion is hereby dismissed for lack of merit.
Dated and delivered at Machakos this 22nd day of January 2026