Alfred Nyongesa Ouma v Republic

Ouma v Republic (Criminal Petition E002 of 2023) [2026] KEHC 13397 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 13397 (KLR) Republic of Kenya In the High Court at Busia Criminal Petition E002 of 2023 SM Mohochi, J July 30, 2026 Between Alfred Nyongesa Ouma Petitioner and Republic Respondent Ruling 1.In his Notice of Motion Application dated 28th February 2023, the Petitioner herein sought for orders of review of his sentence. 2.He swore an affidavit in support of the said application on 28th February 2023. He averred that he was charged and sentenced to serve twenty (20) years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. 3.He asserted that he had appealed to this court, however, he withdrew the same due to lack of matters of law (sic). He added that he chose not to lodge an appeal at the Court of Appeal. 4.He urged this court to invoke Section 333(2) of the Criminal Procedure Code which he argued was not accounted for during sentencing by the Trial Court. He asserted that the mandatory nature of sentences impinges on fair trial guaranteed under Article 50 of the Constitution 2010 and deprives courts the sentencing discretion.He added that the 5.mandatory minimum sentences violate his right to mitigation under Section 216 and 329 of the Criminal Procedure Code. 6.He placed reliance on the case of Petition No E017 of 2021 by Odunga J as he then was, where mandatory minimum sentences were declared unconstitutional. He was categorical that during his time in custody he had undergone various biblical studies for his spiritual transformation. He urged the court to consider the same. 7.Notably, none of the parties had filed Written Submissions at the time of writing this Ruling. Therefore, the Ruling herein was based on the Petitioner’s affidavit evidence only. 8.Notably, a perusal of this file indicated that on two (2) occasions, the Petitioner herein filed application for review of his sentence which were dismissed by Hon Musyoka J on grounds that as he had withdrew his appeal before this court in Busia HCCRA No 65 of 2013 after the Respondent filed a Notice of enhancement of sentence under Section 354(3)(b) of the Criminal Procedure Code, he, therefore, could not purport to revive or resurrect the appeal by way of a review. 9.That was the holding of this court in two (2) Rulings dated 24th January 2025 and 17th October 2025. Having said so as this court was equal in jurisdiction as to that of the Learned Judge, Musyoka J, it, therefore, had no jurisdiction to sit on appeal or review of his decision. 10.The only option that the Petitioner had was to lodge an appeal of the Learned Judge’s Rulings at the Court of Appeal. 11.In the premises, his Notice of Motion application dated 28th February 2023 be and is hereby struck out for want of jurisdiction. Orders accordingly. DATED AND DELIVERED AT BUSIA THIS 30TH DAY OF JULY 2026………………………………S. MOHOCHIJUDGE