1. The Applicant was charged in Keroka MCSO E084 of 2022 with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He pleaded guilty and convicted in sentenced to thirty years’ imprisonment on 21st November 2022. He subsequently appealed to this Court in Omuko v Republic [2024] KEHC 15355 (KLR) which was determined by a differently constituted Court on 5th December 2024 in which the conviction was upheld and the sentence was reduced to twenty years’ imprisonment.
2. The Applicant has now moved this Court by the Notice of Motion dated 19th May 2026 seeking to be considered for probation in respect of the unserved portion of his sentence. He relies on his remorse and other circumstances set out in his application and states that he is not challenging the sentence.
3. The question for determination is whether this Court, differently constituted from the Court which determined the appeal, has jurisdiction to entertain an application which seeks, in substance, to alter the manner in which the sentence determined on appeal is to be served.
4. The Court of Appeal in Lusaka v Republic [2023] KECA 1071 (KLR) held that having determined the appeal against sentence, it was functus officio and lacked jurisdiction to review the sentence.
5. The judgment on appeal finally determined the Applicant’s challenge to the sentence. Although the present application is framed as one for probation, its determination would require this Court to reconsider the sentence already dealt with on appeal and make a further order on how the remaining term is to be served.
6. The Applicant’s remorse and the circumstances relied upon in support of probation cannot confer jurisdiction where none exists. Having regard to the final determination of the appeal, this Court cannot reopen the sentence through the present application.
7. The Notice of Motion dated 19th May 2026 is accordingly dismissed for want of jurisdiction.
DELIVERED AT NYAMIRA THIS 22nd DAY OF September 2026
2. The Applicant has now moved this Court by the Notice of Motion dated 19th May 2026 seeking to be considered for probation in respect of the unserved portion of his sentence. He relies on his remorse and other circumstances set out in his application and states that he is not challenging the sentence.
3. The question for determination is whether this Court, differently constituted from the Court which determined the appeal, has jurisdiction to entertain an application which seeks, in substance, to alter the manner in which the sentence determined on appeal is to be served.
4. The Court of Appeal in Lusaka v Republic [2023] KECA 1071 (KLR) held that having determined the appeal against sentence, it was functus officio and lacked jurisdiction to review the sentence.
5. The judgment on appeal finally determined the Applicant’s challenge to the sentence. Although the present application is framed as one for probation, its determination would require this Court to reconsider the sentence already dealt with on appeal and make a further order on how the remaining term is to be served.
6. The Applicant’s remorse and the circumstances relied upon in support of probation cannot confer jurisdiction where none exists. Having regard to the final determination of the appeal, this Court cannot reopen the sentence through the present application.
7. The Notice of Motion dated 19th May 2026 is accordingly dismissed for want of jurisdiction.
DELIVERED AT NYAMIRA THIS 22nd DAY OF September 2026