https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12326

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E057 OF 2026** **AGGREY MUSEVE MUKHOKHO…………………………..APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide the notice of motion dated 9th April, 2026, seeks an order for the review of his sentence so that a less severe sentence may be imposed. He further prays that the application be certified as urgent and heard on a priority basis, that any requisite court fees be waived, and that he be availed before the court at the hearing of the application. 2. The grounds upon which the application is premised are that the Applicant was arrested, charged and subsequently convicted of the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code* in *Siaya Senior Resident Magistrate’s Criminal Case No. 486 of 2012,* following which he was sentenced to life imprisonment. 3. The Applicant contends that he unsuccessfully appealed against both his conviction and sentence before the High Court in *Kisumu High Court Criminal Appeal No. 34 of 2015* and thereafter before the Court of Appeal in *Kisumu Court of Appeal Criminal Appeal No. 77 of 2020.* 4. The Applicant further avers that the present application is founded on recent jurisprudence, particularly the decision of the High Court at Mombasa in *Petition No. 5 of 2022*, in which, according to him, the court held that the mandatory sentence prescribed under *Section 296(2)* of the *Penal Code* is inconsistent with the *Constitution.* 5. He therefore contends that the mandatory nature of the sentence rendered his right to mitigation under *Sections 216* and *329* of the *Criminal Procedure Code* ineffective and infringed his right to equal protection and equal benefit of the law under *Article 27(1)* of the *Constitution.* 6. The Applicant further states that he is a first offender, is remorseful for the offence committed, and was the sole breadwinner of his family comprising his wife and nine children. He further avers that he has been in custody for approximately fourteen years, during which period he has undertaken various rehabilitation programmes and therefore urges the court to find that he has been reformed. 7. Consequently, the Applicant prays that the court reviews his sentence by substituting the life sentence with a lesser custodial sentence or, in the alternative, a non-custodial sentence, or grants such other orders as it may deem fit in the circumstances. 8. The application is supported by the Applicant’s affidavit in which he deposes that he was arrested, charged and convicted of the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code* in *Siaya Senior Principal Magistrate’s Criminal Case No. 486 of 2012,* following which he was sentenced to life imprisonment. 9. He further deposes that his appeals to the High Court in *Kisumu High Court Criminal Appeal No. 34 of 2015* and subsequently to the Court of Appeal in *Kisumu Court of Appeal No. 77 of 2020* were unsuccessful. 10. The Applicant further deposes that the present application is predicated upon recent jurisprudence from the High Court at Mombasa, which, according to him, declared the mandatory nature of the sentence prescribed under *Sections 296(2)* and *297(2)* of the *Penal Code* unconstitutional. 11. He contends that the mandatory sentence deprived him of the benefit of meaningful mitigation under *Sections 216* and *329* of the *Criminal Procedure Code* and violated his right to equal protection and equal benefit of the law guaranteed under *Article 27(1)* of the *Constitution.* 12. The Applicant further avers that he is a first offender, is remorseful for his actions and is the husband of one wife and father of five children, whom he previously supported as the sole breadwinner. 13. He further states that he has been in prison for approximately fourteen years, during which period he has successfully undertaken various rehabilitation programmes, and therefore urges the court to regard him as a reformed offender. 14. Consequently, the Applicant beseeches the court to review his sentence by substituting the life sentence with a lesser custodial sentence, a non-custodial sentence, or such other appropriate orders, including his release, as the court may deem fit. 15. The application is opposed and to that end the Respondent filed a replying affidavit sworn by **Ms. Mercy Mutheu Muema,** Prosecution Counsel, in which she admits that the Applicant was charged, tried and convicted before the Senior Resident Magistrate’s Court at Siaya in *Criminal Case No. 486 of 2012* on two counts of robbery with violence contrary to *Sections 295* as read with *296(2)* of the *Penal Code* and was sentenced to death on 3rd June, 2014. 16. She further deposes that the Applicant exercised his right of appeal to the High Court in *Kisumu High Court Criminal Appeal No. 34 of 2015,* which appeal was dismissed after the appellate court re-evaluated the entire evidence and upheld both the conviction and sentence. She also avers that the Applicant’s subsequent appeal to the Court of Appeal in *Kisumu Court of Appeal No. 77 of 2020* was likewise dismissed, thereby affirming the sentence imposed by the trial court. 17. The Respondent further deposes that the sentence imposed upon the Applicant was the sentence prescribed by law under *Section 296(2)* of the *Penal Code* at the time of conviction and that the trial court committed no error in imposing it. She contends that the legality of the sentence has since been conclusively affirmed by both the High Court and the Court of Appeal. 18. The Respondent therefore maintains that the matters raised by the Applicant do not constitute sufficient grounds to warrant a review, setting aside or variation of the sentence. She further contends that this court lacks jurisdiction to entertain the present application, the sentence having already been considered and upheld by the High Court, a court of concurrent jurisdiction, and subsequently by the Court of Appeal. 19. Consequently, she urges the court to decline jurisdiction and dismiss the application for want of merit. 20. I have carefully considered the notice of motion, the grounds in support thereof, the supporting affidavit, the replying affidavit sworn on behalf of the Respondent and the applicable law. In my respectful view, the threshold issue for determination is whether this court, sitting as a High Court in a miscellaneous criminal application, has jurisdiction to review or vary a sentence that has already been considered and affirmed by both the High Court on first appeal and the Court of Appeal on second appeal. 21. Jurisdiction is everything. Without it, a court has no power to take even one more step in a matter. It is only upon satisfying itself that it is properly clothed with jurisdiction that a court may proceed to determine the merits of a dispute. Conversely, where jurisdiction is absent, the court must immediately down its tools. 22. The Applicant candidly acknowledges that following his conviction by the trial court, he exercised his right of appeal to the High Court in Kisumu *High Court Criminal Appeal No. 34 of 2015*, where both his conviction and sentence were upheld. 23. Dissatisfied with that decision, he preferred a second appeal to the Court of Appeal in *Kisumu Court of Appeal No. 77 of 2020*, which likewise affirmed the conviction and sentence. 24. Those appellate decisions conclusively determined the legality and propriety of the sentence imposed upon the Applicant. This court, being a court of coordinate jurisdiction with the High Court that determined the first appeal, has no jurisdiction to sit on appeal over, review, vary or otherwise interfere with that decision. Equally, it cannot purport to reopen or circumvent a judgement of the Court of Appeal through the device of a miscellaneous criminal application. 25. The jurisdiction of the High Court to revise criminal proceedings under *Sections 362* and *364* of the *Criminal Procedure Code* is likewise of no assistance to the Applicant. Revision is a special supervisory jurisdiction exercisable over subordinate courts to correct any illegality, incorrectness, impropriety or irregularity apparent on the record. 26. It does not empower one Judge of the High Court to revise, review or set aside the decision of another Judge of concurrent jurisdiction, much less to reopen a matter that has subsequently been considered and determined by the Court of Appeal. To hold otherwise would offend the doctrine of finality of litigation and undermine the hierarchical structure of the courts established by the *Constitution.* 27. The Applicant principally relies on subsequent constitutional jurisprudence which, according to him, has declared the mandatory sentence prescribed under *Section 296(2)* of the *Penal Code* unconstitutional. 28. However, even assuming such jurisprudence exists, it does not vest this court with jurisdiction to reopen a sentence that has attained finality after determination by the appellate courts. Jurisdiction cannot be conferred by the perceived merits of a litigant’s claim or by subsequent developments in the law where the court otherwise lacks the legal mandate to entertain the proceedings before it. 29. Furthermore, the Supreme Court in ***Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)******(Directions)******[2021] KE-SC 31 (KLR) (6 July 2021) (Directions)*** unequivocally clarified that its decision in ***Francis Karioko Muruatetu & another v Republic******[2017] eKLR*** was confined to the mandatory death sentence prescribed under Section 204 of the Penal Code in murder cases. 30. The Supreme Court expressly directed that the decision should not be understood as extending to other capital offences, including robbery with violence under *Section 296(2)* and attempted robbery with violence under *Section 297(2)* of the *Penal Code,* unless and until those provisions are specifically and successfully challenged in appropriate proceedings. Consequently, the Applicant cannot invoke ***Muruatetu*** as a basis for sentence review in these proceedings. 31. It is equally significant that the present proceedings were commenced by way of a miscellaneous criminal application. They are not a constitutional petition inviting the court to interrogate the constitutionality of *Section 296(2)* of the *Penal Code* or to determine whether any constitutional rights were violated in the sentencing process. 32. Even if such constitutional questions were properly raised, this court would still have to confront the insurmountable fact that the Applicant’s conviction and sentence have already been affirmed by the appellate courts. This miscellaneous application is therefore an inappropriate procedural vehicle for the reliefs sought. 33. In the premises, I find that this court lacks jurisdiction to entertain the Applicant’s invitation to review or vary a sentence that has already been affirmed by the High Court and the Court of Appeal. The application is therefore incompetent and devoid of merit. Accordingly, the Applicant’s application is hereby dismissed in its entirety. 34. This file is closed. DELIVERED (virtually) DATED and SIGNED this 28th day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**