Criminal Misc. Application No. E068 of 2025 Page 1 of 7
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APP NO. E068 OF 2025
IN THE MATTER OF ARTICLES 50(2)(p)(q), 22(1)(3), 25, 27(1), 19(3) OF
THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ARTICLE 269(2) OF THE PENAL CODE CAP 63 LAWS
OF KENYA
AND
IN THE MATTER OF SENTENCE REDUCTION AND SUBSTITUTE IT WITH A
LESSER SEVERE SENTENCE
BETWEEN
WYCLIFFE IMBUGA ONYANGO…..……………………………….……..APPLICANT
VERSUS
REPUBLIC…………………………………………………………………..RESPONDENT
Coram: Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
Introduction
1. The Applicant was charged, tried, found guilty, convicted and sentence for
the offence of robbery contrary to Section 296(2) of the Penal Code. He was
subsequently to suffer death which was later to be commuted to life
imprisonment with effect 20th October 2016. He was aggrieved with the
conviction and sentence the record tells us necessitating him to prefer an
appeal to the High Court in Criminal Appeal Case No. 78 of 2016 and
thereafter to the Kenya Court of Appeal Case No. 79 of 2018. In both Courts
he lost on conviction and sentence.
2. Now before this Court is a notice of motion by the Applicant, dated on 15th
December 2025, seeking the following orders:
Criminal Misc. Application No. E068 of 2025 Page 2 of 7
a. May this Hon. Court be pleased to hear and determine this application on
sentence reduction.
b. May this Hon. court be pleased to waive any fee incurred in this application
as I am a pauper and in prison.
c. Or any other orders that this Hon. Court may deem just and fit.
3. This application is for sentence reduction: Thus;
a. That the applicant was arrested charged, convicted and sentenced to serve
a Death sentence for the offence of Robbery with violence contrary to section
296(2) of the Penal Code.
b. That the applicant prays for sentence reduction, his appeals having
unsuccessful in the first appellate court vide HCCR No.78 of 2016 and the
second court vide COA No.79 of 2018
c. Am now a law abiding citizen and very remorseful for the offence through
the prison rehabilitation programs
d. That my right to mitigate under the provisions of section 216 and 329 of the
CPC under the interest of justice applicable for sentence reduction.
4. This affidavit forms the basis upon which the Applicant seeks leave of the
Court to interfere with the sentence imposed by the trial Court and thereafter
litigated before the High Court and subsequently to the Kenya Court of Appeal
and duly dismissed.
Decision
5. This Court reminds itself that sentence process is a complex and difficult
exercise and which cannot be approached with caprice or win. It can never
be a rigid arithmetic, mechanistic or a scientific process. This ultimate and
penultimate decision is the one used essentially to maintain public confidence
in the justice sector for one must have regard to the gravity of the offence
committed by the offender, the victim impact and the public interest as a
whole.
6. It is one of the important judicial duties to be performed by a Judge or the
Magistrate as the case may be. The clearest responsibility of sentencing
Criminal Misc. Application No. E068 of 2025 Page 3 of 7
Judges and Magistrates to be fully aware of the guidance given in the judicial
precedents and the Sentencing Policy Guidelines of the Judiciary 2023 and
faithfully apply it to cases even though the sentencing exercise may be both
difficult and painful to fathom. The guideline case of the Sentencing Policy of
the Judiciary is to be interpreted in a manner which takes into account
various factors and objectives. That is how one can be able to get to the
bottom pit of the matter to comprehensively come up with the range of
sentences to impose in a particular offence.
7. The following objective and principles of sentencing in the Sentencing Policy
Guidelines of the Judiciary must mirror the decision making process of both
at the trial Court and on Appeal’s Court:
Proportionality: The sentence meted out must be proportionate to the
offending behaviour meaning it must not be more or less than is merited in
view of the gravity of the offence. Proportionality of the sentence to the
offending behaviour is weighted in view of the actual, foreseeable, and
intended impact of the offence as well as the responsibility of the offender.
Equality/Uniformity/Parity/Consistency/Impartiality: The same
sentences should be imposed for same offences committed by offenders in
similar circumstances.
Accountability and Transparency: The reasoning behind the determination
of sentence should be clearly set out and in accordance with the law and the
sentencing principles laid out in these guidelines.
Inclusiveness: Both the offender and the victim should participate in and
inform the sentencing process.
Totality of the Sentence: The sentence passed for offenders convicted for
multiple counts must be just and proportionate, taking into account the
offending behaviour as a whole. More guidance is given on this in paragraphs
2.3.21 to 2.3.30.
Criminal Misc. Application No. E068 of 2025 Page 4 of 7
8. Sentences are imposed to meet the following objectives. There will be
instances in which the objectives may conflict with each other – insofar as
possible, sentences imposed should be geared towards meeting the objectives
in totality.
Retribution: To punish the offender for their criminal conduct in a just
manner.
Deterrence: To deter the offender from committing a similar or any other
offence in future as well as to discourage the public from committing offences.
Rehabilitation: To enable the offender to reform from his/her criminal
disposition and become a law-abiding person.
Restorative justice: To address the needs arising from the criminal conduct
such as loss and damages sustained by the victim or the community and to
promote a sense of responsibility through the offender’s contribution towards
meeting those needs.
Community protection: To protect the community by removing the offender
from the community thus avoiding the further perpetuation of the offender’s
criminal acts.
Denunciation: To clearly communicate the community’s condemnation of the
criminal conduct.
Reconciliation: To mend the relationship between the offender, the victim
and the community.
Reintegration: To facilitate the re-entry of the offender into the society.
9. In the instant application the record has been examined and reviewed and it
paints a picture of an Applicant who has litigated his issues on conviction
and sentence to the Kenya Court of Appeal. The substantive issues were
extensively and intensively considered and a final decision made including
that of sentence the subject matter of this motion.
10. What this means in law in criminal cases the civil doctrine of res judicata
though not commonly used as a blanket on any interlocutory applications
post judgment, it is applicable to prevent an accused person from filing
multiple applications as a guise for seeking justice. It equally applies to
Criminal Misc. Application No. E068 of 2025 Page 5 of 7
prevent an accused person from being retried for an offence he or she has
already been legally acquitted or convicted by a competent Court duly
constituted under Article 50(1) of the Constitution.
11. In the application before this Court, there is also the concept of admissibility
of the subject matter which concerns the power of this Court to exercise its
jurisdiction in particular on review of sentence which has already been
litigated up to the Court of Appeal. The principles related to the concept of
admissibility of a cause of action is the rule of res judicata profoundly defined
in civil law field under Section 7 of the Civil Procedure Act which bars any
Court from exercising jurisdiction over a dispute, or claim or proceedings that
has or have already been settled by another Tribunal or Court. In other
words, may it be civil or criminal a judgment delivered by a judicial body duly
constituted under Article 50(1) of the Constitution and other enabling
Statutes carries a preclusive effect on the successive proceedings over the
civil matter. The rule of res judicata is both a doctrine of domestic and
International Law. It is not therefore about private rights which are subject
of res judicata. It applies in equal measure in respect of matters of public
policy in the realm of criminal justice system it ensures economic efficiency
in the judicial process, brings an end to multiplicity of litigation under the
context of resentencing or review of sentence so as to further legal certainty
of decisions of Courts and Tribunals.
12. The Applicant in this case having failed to get a remedy at the High Court and
the Court of Appeal cannot allege any violation of equality before the law or
violation of fair trial rights under the Constitution to challenge the decision
made by the trial Court and subsequently affirmed by the two Superior
Courts. The resentencing process in Kenya is very controversial as the
Pandora’s box seems to have been the interpretation and construction of the
predominant principle in the Francis Kariuko Muruatetu Case. The
Superior Courts and the Magistrate’s Courts have made decisions and
declared admissibility of evidence on matters of resentencing which
essentially border on res judicata. The Applicant in cases of this nature is
Criminal Misc. Application No. E068 of 2025 Page 6 of 7
mandated by law to bring the entire case to the Courts and not to litigate in
piece meal.
13. This Court has reviewed both the trial Court judgment and subsequent
decisions before the High Court and the Court of Appeal and this fundamental
doctrine of res judicata is for all Courts that there must be an end to litigation.
The Learned Authors in Halbury’s Laws of England, 4th Edition Vol. 16
paragraph 1528 reads in part as follows:
“In order for the defence of res judicata to succeed it is necessary to show
not only that the cause of action was the same but also that the plaintiff has
had an opportunity of recovery and but for his own fault might have
recovered in the first action that which he seeks to recover in the second
action… It is not enough that the matter alleged to be concluded might have
been put in issue, or that the relief sought might have been claimed. It is
necessary to show that it was actually put in issue or claimed.”
14. The judgments of the Courts from the primary Subordinate Court all the way
to Court of Appeal is a judgment in rem. There is no difficulty in determining
that the Applicant and the State were involved in the litigation process. The
judgments bind the parties and the whole world is bound by it unless the
same has been reviewed or set aside by another competent constitutional
authority or judicial body. The desire to re-litigate this matter on sentence
by the Applicant has no force of law and if this Court was to go forward with
the application on the merits it will be an abuse of the Court process. Re-
litigation on sentencing by the various convicted persons in our prisons
maybe a form of seeking sympathy and mercy but that is not the main reason
why Courts exist in Kenya.
15. In my considered view, the Applicant is estopped from initiating a prosecution
of the issue of sentence before this Court which had already been dealt with
by the previous Courts with finality. The doctrine of estoppel is founded on
the premise that it would be most unjust and inequitable that if a person or
for our case an Applicant already convicted and serving sentence moves
Criminal Misc. Application No. E068 of 2025 Page 7 of 7
representations made by himself or by legal Counsel mounts a litigation
which has already been heard and determined conclusively with the final
judgment of a Court of law. The State and the Applicant are bound by the
previous judgments pronounced by the various levels of Courts. What the
Applicant is doing by this very nature of application is to trouble the Court
and vex it for the same cause of action. It is for these reasons I dismiss the
application to resentence the Applicant under Section 382 of the Criminal
Procedure Code. It is so ordered.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APP NO. E068 OF 2025
IN THE MATTER OF ARTICLES 50(2)(p)(q), 22(1)(3), 25, 27(1), 19(3) OF
THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ARTICLE 269(2) OF THE PENAL CODE CAP 63 LAWS
OF KENYA
AND
IN THE MATTER OF SENTENCE REDUCTION AND SUBSTITUTE IT WITH A
LESSER SEVERE SENTENCE
BETWEEN
WYCLIFFE IMBUGA ONYANGO…..……………………………….……..APPLICANT
VERSUS
REPUBLIC…………………………………………………………………..RESPONDENT
Coram: Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
Introduction
1. The Applicant was charged, tried, found guilty, convicted and sentence for
the offence of robbery contrary to Section 296(2) of the Penal Code. He was
subsequently to suffer death which was later to be commuted to life
imprisonment with effect 20th October 2016. He was aggrieved with the
conviction and sentence the record tells us necessitating him to prefer an
appeal to the High Court in Criminal Appeal Case No. 78 of 2016 and
thereafter to the Kenya Court of Appeal Case No. 79 of 2018. In both Courts
he lost on conviction and sentence.
2. Now before this Court is a notice of motion by the Applicant, dated on 15th
December 2025, seeking the following orders:
Criminal Misc. Application No. E068 of 2025 Page 2 of 7
a. May this Hon. Court be pleased to hear and determine this application on
sentence reduction.
b. May this Hon. court be pleased to waive any fee incurred in this application
as I am a pauper and in prison.
c. Or any other orders that this Hon. Court may deem just and fit.
3. This application is for sentence reduction: Thus;
a. That the applicant was arrested charged, convicted and sentenced to serve
a Death sentence for the offence of Robbery with violence contrary to section
296(2) of the Penal Code.
b. That the applicant prays for sentence reduction, his appeals having
unsuccessful in the first appellate court vide HCCR No.78 of 2016 and the
second court vide COA No.79 of 2018
c. Am now a law abiding citizen and very remorseful for the offence through
the prison rehabilitation programs
d. That my right to mitigate under the provisions of section 216 and 329 of the
CPC under the interest of justice applicable for sentence reduction.
4. This affidavit forms the basis upon which the Applicant seeks leave of the
Court to interfere with the sentence imposed by the trial Court and thereafter
litigated before the High Court and subsequently to the Kenya Court of Appeal
and duly dismissed.
Decision
5. This Court reminds itself that sentence process is a complex and difficult
exercise and which cannot be approached with caprice or win. It can never
be a rigid arithmetic, mechanistic or a scientific process. This ultimate and
penultimate decision is the one used essentially to maintain public confidence
in the justice sector for one must have regard to the gravity of the offence
committed by the offender, the victim impact and the public interest as a
whole.
6. It is one of the important judicial duties to be performed by a Judge or the
Magistrate as the case may be. The clearest responsibility of sentencing
Criminal Misc. Application No. E068 of 2025 Page 3 of 7
Judges and Magistrates to be fully aware of the guidance given in the judicial
precedents and the Sentencing Policy Guidelines of the Judiciary 2023 and
faithfully apply it to cases even though the sentencing exercise may be both
difficult and painful to fathom. The guideline case of the Sentencing Policy of
the Judiciary is to be interpreted in a manner which takes into account
various factors and objectives. That is how one can be able to get to the
bottom pit of the matter to comprehensively come up with the range of
sentences to impose in a particular offence.
7. The following objective and principles of sentencing in the Sentencing Policy
Guidelines of the Judiciary must mirror the decision making process of both
at the trial Court and on Appeal’s Court:
Proportionality: The sentence meted out must be proportionate to the
offending behaviour meaning it must not be more or less than is merited in
view of the gravity of the offence. Proportionality of the sentence to the
offending behaviour is weighted in view of the actual, foreseeable, and
intended impact of the offence as well as the responsibility of the offender.
Equality/Uniformity/Parity/Consistency/Impartiality: The same
sentences should be imposed for same offences committed by offenders in
similar circumstances.
Accountability and Transparency: The reasoning behind the determination
of sentence should be clearly set out and in accordance with the law and the
sentencing principles laid out in these guidelines.
Inclusiveness: Both the offender and the victim should participate in and
inform the sentencing process.
Totality of the Sentence: The sentence passed for offenders convicted for
multiple counts must be just and proportionate, taking into account the
offending behaviour as a whole. More guidance is given on this in paragraphs
2.3.21 to 2.3.30.
Criminal Misc. Application No. E068 of 2025 Page 4 of 7
8. Sentences are imposed to meet the following objectives. There will be
instances in which the objectives may conflict with each other – insofar as
possible, sentences imposed should be geared towards meeting the objectives
in totality.
Retribution: To punish the offender for their criminal conduct in a just
manner.
Deterrence: To deter the offender from committing a similar or any other
offence in future as well as to discourage the public from committing offences.
Rehabilitation: To enable the offender to reform from his/her criminal
disposition and become a law-abiding person.
Restorative justice: To address the needs arising from the criminal conduct
such as loss and damages sustained by the victim or the community and to
promote a sense of responsibility through the offender’s contribution towards
meeting those needs.
Community protection: To protect the community by removing the offender
from the community thus avoiding the further perpetuation of the offender’s
criminal acts.
Denunciation: To clearly communicate the community’s condemnation of the
criminal conduct.
Reconciliation: To mend the relationship between the offender, the victim
and the community.
Reintegration: To facilitate the re-entry of the offender into the society.
9. In the instant application the record has been examined and reviewed and it
paints a picture of an Applicant who has litigated his issues on conviction
and sentence to the Kenya Court of Appeal. The substantive issues were
extensively and intensively considered and a final decision made including
that of sentence the subject matter of this motion.
10. What this means in law in criminal cases the civil doctrine of res judicata
though not commonly used as a blanket on any interlocutory applications
post judgment, it is applicable to prevent an accused person from filing
multiple applications as a guise for seeking justice. It equally applies to
Criminal Misc. Application No. E068 of 2025 Page 5 of 7
prevent an accused person from being retried for an offence he or she has
already been legally acquitted or convicted by a competent Court duly
constituted under Article 50(1) of the Constitution.
11. In the application before this Court, there is also the concept of admissibility
of the subject matter which concerns the power of this Court to exercise its
jurisdiction in particular on review of sentence which has already been
litigated up to the Court of Appeal. The principles related to the concept of
admissibility of a cause of action is the rule of res judicata profoundly defined
in civil law field under Section 7 of the Civil Procedure Act which bars any
Court from exercising jurisdiction over a dispute, or claim or proceedings that
has or have already been settled by another Tribunal or Court. In other
words, may it be civil or criminal a judgment delivered by a judicial body duly
constituted under Article 50(1) of the Constitution and other enabling
Statutes carries a preclusive effect on the successive proceedings over the
civil matter. The rule of res judicata is both a doctrine of domestic and
International Law. It is not therefore about private rights which are subject
of res judicata. It applies in equal measure in respect of matters of public
policy in the realm of criminal justice system it ensures economic efficiency
in the judicial process, brings an end to multiplicity of litigation under the
context of resentencing or review of sentence so as to further legal certainty
of decisions of Courts and Tribunals.
12. The Applicant in this case having failed to get a remedy at the High Court and
the Court of Appeal cannot allege any violation of equality before the law or
violation of fair trial rights under the Constitution to challenge the decision
made by the trial Court and subsequently affirmed by the two Superior
Courts. The resentencing process in Kenya is very controversial as the
Pandora’s box seems to have been the interpretation and construction of the
predominant principle in the Francis Kariuko Muruatetu Case. The
Superior Courts and the Magistrate’s Courts have made decisions and
declared admissibility of evidence on matters of resentencing which
essentially border on res judicata. The Applicant in cases of this nature is
Criminal Misc. Application No. E068 of 2025 Page 6 of 7
mandated by law to bring the entire case to the Courts and not to litigate in
piece meal.
13. This Court has reviewed both the trial Court judgment and subsequent
decisions before the High Court and the Court of Appeal and this fundamental
doctrine of res judicata is for all Courts that there must be an end to litigation.
The Learned Authors in Halbury’s Laws of England, 4th Edition Vol. 16
paragraph 1528 reads in part as follows:
“In order for the defence of res judicata to succeed it is necessary to show
not only that the cause of action was the same but also that the plaintiff has
had an opportunity of recovery and but for his own fault might have
recovered in the first action that which he seeks to recover in the second
action… It is not enough that the matter alleged to be concluded might have
been put in issue, or that the relief sought might have been claimed. It is
necessary to show that it was actually put in issue or claimed.”
14. The judgments of the Courts from the primary Subordinate Court all the way
to Court of Appeal is a judgment in rem. There is no difficulty in determining
that the Applicant and the State were involved in the litigation process. The
judgments bind the parties and the whole world is bound by it unless the
same has been reviewed or set aside by another competent constitutional
authority or judicial body. The desire to re-litigate this matter on sentence
by the Applicant has no force of law and if this Court was to go forward with
the application on the merits it will be an abuse of the Court process. Re-
litigation on sentencing by the various convicted persons in our prisons
maybe a form of seeking sympathy and mercy but that is not the main reason
why Courts exist in Kenya.
15. In my considered view, the Applicant is estopped from initiating a prosecution
of the issue of sentence before this Court which had already been dealt with
by the previous Courts with finality. The doctrine of estoppel is founded on
the premise that it would be most unjust and inequitable that if a person or
for our case an Applicant already convicted and serving sentence moves
Criminal Misc. Application No. E068 of 2025 Page 7 of 7
representations made by himself or by legal Counsel mounts a litigation
which has already been heard and determined conclusively with the final
judgment of a Court of law. The State and the Applicant are bound by the
previous judgments pronounced by the various levels of Courts. What the
Applicant is doing by this very nature of application is to trouble the Court
and vex it for the same cause of action. It is for these reasons I dismiss the
application to resentence the Applicant under Section 382 of the Criminal
Procedure Code. It is so ordered.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE