https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11081

Okuku v Republic (Miscellaneous Criminal Application E075 of 2026) [2026] KEHC 11081 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 11081 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Criminal Application E075 of 2026 JM Omido, J July 8, 2026 Between Brian Okoth Okuku Applicant and Republic Respondent Ruling 1.The Applicant herein, vide his notice of motion dated 7th May, 2026 seeks an order that his sentence of 10 years imprisonment be reviewed and be reduced “to the least severe one”, citing Article 50(2)(p) of the Constitution. 2.The application is premised on the grounds, as reiterated in the Applicant’s supporting affidavit, that he has reformed and undergone rehabilitation during his incarceration and is genuinely remorseful for the criminal conduct that culminated in his conviction and imprisonment. 3.He further avers that he is a husband and the father of four children, all of whom depend on him for support, and that his continued incarceration has occasioned hardship to his family. 4.The Applicant also avers that he was a first offender and has since resolved to lead a law-abiding life. He undertakes not to reoffend or pose any threat to society if released and accordingly beseeches the Court to grant him an opportunity to reunite with his family and rebuild his life. 5.The application is opposed and to that end the Respondent filed a replying affidavit sworn on 24th June, 2026 by Ms. Mercy Mutheu Muema, learned Prosecution Counsel. 6.In her affidavit, Ms. Muema deposes that the Applicant, jointly with another, was charged before the Principal Magistrate’s Court at Maseno in Criminal Case Nos. E510 and E511 of 2024 with the offences of burglary contrary to Section 304(2) of the Penal Code and stealing contrary to Section 279(b) of the Penal Code, with the alternative charge of handling stolen goods contrary to Section 322(1) as read with Section 322(2) of the Penal Code. 7.Counsel avers that the two cases arose from separate incidents involving different complainants, different stolen properties and distinct complaints made to the police. 8.Ms. Muema further deposes that the Applicant pleaded guilty to the charges in both cases and was, on 24th January, 2025, convicted and sentenced to serve five (5) years’ imprisonment on each count of burglary and stealing, the sentences within each case to run concurrently, thereby resulting in an aggregate sentence of ten (10) years’ imprisonment. 9.She maintains that the sentences imposed were well within, and indeed substantially below, the maximum penalties prescribed by law and were therefore neither harsh, excessive nor unlawful. 10.Ms. Muema further avers that this is not the first occasion on which the Applicant has sought this Court’s intervention in respect of the same sentence. She states that the Applicant initially lodged Criminal Appeal No. E006 of 2025 challenging the consecutive nature of the sentences and their alleged harshness but subsequently withdrew the appeal. She adds that, notwithstanding the withdrawal, the Court invoked its revisionary jurisdiction, quashed the conviction and sentence in Criminal Case No. E511 of 2024 on the basis that the charge sheet appeared to duplicate that in Criminal Case No. E510 of 2024. She has and annexed a copy of the ruling in support thereof. 11.Counsel deposes that the Applicant thereafter filed Criminal Miscellaneous Application No. E061 of 2025 seeking orders that the sentences in the two criminal cases run concurrently. She avers that, after calling for and examining the original trial court records, the High Court found that the two cases related to different complainants, distinct offences and separate properties, and consequently held that the Applicant had been properly charged and sentenced in two separate cases and hence, the application was dismissed for want of merit. 12.Ms. Muema further deposes that although there appears to be an inconsistency between the two earlier rulings, the latter determination, having been reached after scrutiny of the original trial court files, correctly reflects the factual position regarding the Applicant’s conviction and sentence. She maintains that there was no illegality, error or impropriety in the sentence imposed, which was passed after due consideration of the Applicant’s plea of guilty, mitigation and the probation report. 13.It is her further deposition that the present application constitutes the Applicant’s third attempt to challenge the same sentence and amounts to a multiplicity of proceedings and an abuse of the court process. She avers that the Applicant’s remorse, rehabilitation, first-offender status and family responsibilities were matters already considered by both the trial court and the High Court in the previous proceedings and do not, without more, constitute lawful grounds for further reduction of a sentence that is already substantially below the statutory maximum. 14.Finally, Ms. Muema deposes that the Applicant has failed to demonstrate any illegality, excessiveness or other legally recognizable basis warranting this Court’s interference with the sentence. She therefore contends that the application is devoid of merit and urges the Court to dismiss it in its entirety. 15.Having carefully considered the Notice of Motion, the supporting affidavit, the replying affidavit and the applicable law, I am of the view that the following issues arise for determination:a.Whether this Court has jurisdiction to review or reduce the Applicant’s sentence in the circumstances of this case.b.Whether the Applicant has established any legal basis warranting interference with the sentence imposed.c.What orders ought to issue. 16.The first issue concerns the jurisdiction of this Court. Jurisdiction is the foundation upon which every judicial proceeding rests. It is trite that a court can only exercise such jurisdiction as is donated by the Constitution or statute. Where jurisdiction is absent, the Court must decline to entertain the matter irrespective of the merits of the application before it. 17.The material placed before this Court demonstrates that the Applicant pleaded guilty before the Principal Magistrate’s Court at Maseno in Maseno Criminal Case Nos. E510 and E511 of 2024 and was sentenced to an aggregate term of ten (10) years’ imprisonment. 18.Thereafter, he invoked the appellate jurisdiction of this Court in Kisumu High Court Criminal Appeal No. E006 of 2025. Although he subsequently withdrew the appeal, the High Court nonetheless exercised its revisionary jurisdiction and rendered a determination touching on the legality of the proceedings. 19.The Applicant thereafter filed Kisumu High Court Criminal Miscellaneous Application No. E061 of 2025 seeking, inter alia, orders that the sentences in the two criminal cases run concurrently. Upon calling for and examining the original trial court records, the High Court dismissed that application after finding that the two criminal cases related to distinct complainants, separate offences and different properties, and that the sentences had been lawfully imposed. 20.It is therefore beyond dispute that the legality and propriety of the Applicant’s sentence have already been considered and determined by the High Court. The present application once again invites this Court to revisit the same sentence and to reduce it on account of the Applicant’s rehabilitation, remorse, family circumstances and status as a first offender. 21.This Court, however, sits as the High Court, exercising jurisdiction concurrent with that exercised by the learned Judge who determined Criminal Miscellaneous Application No. E061 of 2025. It is a well-settled principle that one Judge of the High Court cannot sit on appeal over, review or vary the decision of another Judge of the High Court exercising coordinate jurisdiction unless expressly authorized by law. To hold otherwise would undermine the doctrine of finality in litigation and create uncertainty in the administration of justice by permitting Judges of concurrent jurisdiction to render conflicting decisions over the same subject matter. 22.The Applicant has not pointed to any constitutional or statutory provision conferring jurisdiction upon this Court to reopen or vary the sentence that has already been the subject of determination by another Judge of the High Court. 23.The Applicant’s invocation of Article 50(2)(p) of the Constitution does not avail him. That provision is intended to protect an accused person from being subjected to a harsher punishment introduced after the commission of the offence. It does not empower a Judge of concurrent jurisdiction to revisit or reduce a lawful sentence that has already been considered by another Judge of the High Court. 24.In the absence of jurisdiction, this Court cannot interrogate the merits of the Applicant’s plea for reduction of sentence. Jurisdiction cannot be conferred by the parties’ consent, nor can it arise from the Applicant’s personal circumstances, however sympathetic they may be. 25.Even if jurisdiction existed, which it does not, the Applicant has not demonstrated any illegality, irregularity, impropriety or error of principle in the sentence imposed by the trial court. His application rests entirely on his alleged rehabilitation, remorse, family responsibilities and first-offender status. Those are undoubtedly relevant mitigating considerations at the point of sentencing. However, the material before this Court shows that those considerations were already taken into account by the trial court and were subsequently considered in the previous proceedings before the High Court. They cannot, without more, constitute a legal basis for reopening a lawful sentence. 26.I also agree with the Respondent that the present application is yet another attempt by the Applicant to challenge the same sentence after previous proceedings before the High Court. Litigation must, at some point, come to an end. A litigant cannot repeatedly return to the High Court seeking substantially the same relief merely because he is dissatisfied with earlier determinations rendered by Judges of concurrent jurisdiction. 27.If the Applicant remains dissatisfied with the determination of the High Court regarding his sentence, the proper course open to him is to invoke the appellate jurisdiction of the Court of Appeal. This Court cannot, under the guise of reviewing or reducing sentence, sit on appeal over or alter the decision of another Judge of concurrent jurisdiction. 28.Consequently, I find that this Court lacks jurisdiction to entertain the present application. That finding is sufficient to dispose of the matter. 29.In the result, the Notice of Motion dated 7th May, 2026 is hereby dismissed for want of jurisdiction. 30.This file is hereby closed. DELIVERED (VIRTUALLY) DATED AND SIGNED THIS 8TH DAY OF JULY, 2026.JOE M. OMIDOJUDGEApplicant: Present, Virtually.Respondent: Ms. Muema.Court Assistants: Mr. Ngoge & Mr. Juma.