Ngonda v Republic (Criminal Miscellaneous Application E074 of 2025) [2026] KEHC 6791 (KLR) (18 May 2026) (Ruling)

Ngonda v Republic (Criminal Miscellaneous Application E074 of 2025) [2026] KEHC 6791 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6791 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E074 of 2025 RN Nyakundi, J May 18, 2026 Between Clinton Ngonda Applicant and Republic Respondent Ruling 1.Before this court is a notice of motion dated 18th December 2025 brought under section 362 and 364 of the Criminal Procedure Code, articles 22, 23, 25, 27, 28, 29, 50, 159(2)(d), 165(3)(a) and 259 of the Constitution of Kenya 2010, and all enabling provisions of the law. The applicant seeks the following orders:a.That this honourable court be pleased to review, vary and/or reduce the thirty (30) year sentence imposed upon the applicant in Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR) to a lesser and more lenient term of imprisonment.b.That the period already served by the applicant while in custody be taken into account pursuant to section 333(2) of the Criminal Procedure Code.c.That the honourable court do make such other or further orders as may be just and expedient in the circumstances. 2.Which application is found on the following grounds;a.That the applicant was convicted and sentenced to death by the Senior Resident Magistrate's Court at Hamisi in Criminal Case No. 942 of 2016, which sentence was substituted with thirty (30) years' imprisonment by the High Court at Kakamega in Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR).b.That the applicant withdrew his appeal to the Court of Appeal at Kisumu upon the Supreme Court's clarification that the Court of Appeal lacks jurisdiction to review or alter sentences, as sentencing is a matter of fact and not law.c.That this honourable court is therefore properly seized of jurisdiction under articles 165(3)(a) and 50(6) of the Constitution, and sections 362 and 364 of the Criminal Procedure Code, to review the propriety and fairness of the sentence imposed.d.That the applicant has undergone extensive rehabilitation while in custody, as evidenced by theological and correctional certificates earned during his imprisonment, demonstrating genuine reformation and reintegration potential.e.That his current Earliest Possible Date of Discharge (EPD) is 21st March 2038, a period of thirteen (13) years away, which is manifestly long and disproportionate when considered alongside his demonstrated rehabilitation.f.That the sentence of thirty (30) years is manifestly excessive and contrary to the evolving jurisprudence on proportionality, human dignity and the rehabilitative purpose of sentencing.g.That the court in Ali Abdalla Mwanza v Republic [2018] eKLR recognized that, where a term sentence exceeds the national life expectancy (approximately 67 years), it is manifestly excessive, and reduction is warranted to ensure that punishment does not amount to a life sentence by default.h.That in Vinter and Others v United Kingdom (Applications Nos. 66069/09, 130/10 and 3896/10), the European Court of Human Rights emphasized that continued detention must remain justifiable throughout the sentence and should be subject to review in light of changing circumstances and the rehabilitative progress of the prisoner.i.That the applicant's continued incarceration without the possibility of early review or re-sentencing offends the principles of human dignity, fair trial, proportionality, and progressive realization of human rights under the Constitution and international human rights instruments to which Kenya is a party.j.That it is in the interest of justice, equity, and humanity that this honourable court reviews and reduces the sentence to a term that reflects rehabilitation, deterrence, and reformation rather than retribution. 3.In support of the application is the affidavit of one Clinton Ngonda who deponed as follows:a.That I am the applicant herein, convicted and sentenced in Hamisi Senior Resident Magistrate's Court Criminal Case No. 942 of 2016 for the offence of robbery with violence and related counts, hence competent to swear this affidavit.b.That upon appeal, the High Court at Kakamega in Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR) upheld my conviction but substituted the death sentence with a term of thirty (30) years imprisonment.c.That being dissatisfied with the length of the sentence, I initially lodged an appeal to the Court of Appeal at Kisumu but later withdrew it after recent jurisprudence clarified that the Court of Appeal lacks jurisdiction to interfere with sentences since such matters are issues of fact, not law.d.That I therefore bring this application before this honourable court at Vihiga under its review jurisdiction conferred by articles 50(2)(q) and 165(3)(a) of the Constitution.e.That I have now served a substantial portion of the sentence and my Earliest Possible Date of Discharge (EPD) is 21st March 2038, which is thirteen (13) years away, a period that remains disproportionately long in view of my demonstrated rehabilitation and positive conduct in custody.f.That during my incarceration, I have transformed through rehabilitation and education and have attained theological and moral development certificates, copies of which shall be adduced at the hearing herein.g.That I have actively participated in prison ministry, mentorship and reformation programs aimed at moral rebuilding, conflict resolution and peaceful coexistence, and I now live a life founded on humility, discipline and repentance.h.That I humbly urge this honourable court to consider the decision in Ali Abdalla Mwanza v Republic [2018] eKLR, where the court held that long-term sentences exceeding the national life expectancy of about 67 years are manifestly excessive and ought to be reduced to reflect the rehabilitative purpose of punishment.i.That similarly, in Vinter and Others v the United Kingdom (Applications Nos. 66069/09,130/10 and 3896/10), the European Court of Human Rights emphasized that the justification for continued detention must be periodically reviewable in light of a prisoner's rehabilitation and changing circumstances.j.That this application is therefore made not to contest conviction, but to invite this honourable court to exercise its discretionary power of mercy, fairness an proportionality by reviewing the 30-year sentence to a lesser term consistent with the principles of justice and human dignity.k.That the continued incarceration for the remaining thirteen (13) years serves no meaningful rehabilitative purpose and instead imposes undue hardship, contrary to articles 27, 28, 29(f) and 50(2)(p) of the Constitution, which guarantee equality, human dignity, freedom from cruel treatment, and the right to a fair trial including benefit from the least severe punishment.l.That this honourable court has both constitutional and inherent jurisdictions to review sentences that appear harsh, excessive or inconsistent with the principles of proportionality, rehabilitation and social reintegration.m.That I make this application in good faith, without malice or frivolity, and I beseech the court to accord me a second chance to reintegrate into society as a reformed and responsible citizen. 4.The applicant have move the court to review his sentence based on section 333(2) of the Criminal Procedure Code. In his affidavit he contends that the original sentence of death for the offence of robbery with violence contrary to section 296(2) of the Criminal Procedure Code was reviewed on appeal and substitution with the custodial sentence of 30 years’ imprisonment. In this latest application he further argues that he had preferred an appeal to the Court of Appeal sitting at Kisumu but later withdrew it as evidenced by the order of the Court of Appeal dated 27th February 2024. It is his contention that the court exercises discretion to reconsider the sentence under section 333(2) of the CPC so that he can benefit from the letter and spirit of the law. Decision 5.In my view the applicant had an opportunity to litigate that issue before the High Court which considered the death sentence and same was reviewed and substituted with a custodial sentence of 30 years’ imprisonment. The evidence in the affidavit seem to concentrate more on the law and other international instruments with regard to the issue of the sentence being punitive, excessive and not in tandem with the constitutional imperative. That is in so far as the affidavit goes without annexing evidence that the applicant had been in custody for thirteen years. 6.It is the law in Kenya both under civil and criminal law that whoever alleges existence or non-existence of a fact in a particular dispute as provided for under section 107(1), 108, 109 and 112 of the Evidence Act must discharge that burden of proof for him or her to secure judgment in his or her favor from a court of law. In furtherance to this fact, the issues of him having been in remand custody remain to be within the knowledge and personal circumstances of the applicant. This is an old matter. It was decided by Kakamega High Court by Musyoka J and yet the applicant decides to lodge a fresh application for review of that very judgment of an appeal’s court which considered the appeal among other issues on conviction and sentence and now brings a fresh application in a completely different forum which has no advantage of the record. The proper recourse would have been to institute review before that forum in which the session Judge was Musyoka J. He cannot be seen to re-litigate the issue on sentence before a court of concurrent jurisdiction. The session Judge is still in service within the Republic of Kenya. There are no compelling and exceptional circumstances which have been shown or demonstrated before this Court why this application was never filed before Musyoka J and the matter handled virtually on the same issues now being canvassed before me within the scope of the law as provided for under section 362 and 364 of the Criminal Procedure Code. 7.The applicant was bound to prove the existence of any fact or facts that he spent thirteen (13) years in pretrial detention in absence of any record before Vihiga High Court. Although it is trite that in criminal cases the State has both the constitutional and statutory duty to prove the offence or indictment against a suspect or an accused person beyond reasonable doubt, but in this case it an offender, convict formerly an accused person who desires this court to give him judgment under section 333(2) of the CPC on computation of credit. It cannot be the duty of the review court to undertake an excavation of the record to come up with the arithmetic on pretrial detention period so that the law can come to the aid of the applicant. The most restated statement in civil law to the effect that the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence was proved on either side lies with that person and in our case the applicant. 8.In the instant case going through the entire gamut of the evidence adduced by the applicant there is nothing to show that there is any material evidence to support the 13-year detention period. 9.This is about whether this court can exercise jurisdiction to review the judgment of Musyoka J. Why was the applicant not able to approach that very same court immediately soon thereafter it made its pronouncement and decision on conviction and sentence for the offence of robbery with violence contrary to section 296(2) of the Penal Code. This is not about offending the principles of human dignity, fair trial or proportionality under the Constitution 2010 and International Human Rights instruments to which Kenya is a party as envisaged under article 2(5) & (6) of the Constitution. The legal context and text being referred to by the applicant must be applied out of context to extend compassion and mercy in so far as the sentence of 30 years imposed by the appeal’s court. Undoubtedly, the record is very clear that the applicant had preferred to approach the Court of Appeal having been aggrieved with the sentence of the High Court but for reasons which are not very clear, he went ahead to withdraw the appeal rendering the judgment of the High Court to remain as affirmed as legal a decision on matters impacting the criminal proceedings as initiated by the Office Director of Public Prosecution on indictment on the charge of robbery with violence contrary to section 296(2) of the Penal Code within the powers donated by the Constitution under article 157(6) & (7) of the Constitution of Kenya. 10.This court walking down memory lane recalls that this issue of resentencing of already convicted persons within our justice system was birthed by the apex court decision of Francis K. Muruatetu vs Republic [2017] eKLR which specifically focused on the mandatory death sentence for the offence of murder under section 203 as read with section 204 of the Penal Code. The findings of the apex court although was within the realm and ambit of murder sentencing prescription by Parliament under section 204 of the Penal Code on mandatory death sentence, its application opened up floodgates of litigation to other penal laws and sentences imposed by various courts as against other persons convicted of such offences. If I apply the classic formulation in article 353 of the French Court of Criminal Procedure to the facts of this case on interpretation of whether the applicant has met the threshold of the law, the answer will be in the negative and I quote;“The law does not ask Judges for an explanation of the means by which they are convinced, it does not set any particular rules by which they must assess the fullness and adequacy of the evidence; it stipulates that they must search their conscience in good faith and silently and thoughtfully ask themselves what impression the evidence given against the accused and the defence's arguments have made upon them. The law asks them only one question which sums up all of their duties 'Are you personally convinced?” 11.Going by this legal text am yet to be convinced that the applicant has a pre-detention of thirteen (13) years which he has been unable to bring forth in the entirety of the proceedings including the withdrawn appeal before the Kenya Court of Appeal. What this case boils to is that the current forum lacks the jurisdiction and authority to hear the matter on review or as they commonly call it resentencing. This threshold and hurdle has not been surmounted by the applicant for a remedy on credit period under section 333(2) of the Criminal Procedure Code to be passed as a benefit within the prism of the law. In making this finding I am guided by the principles in the following case law:The Lillian S. Principle (Owners of the Motor vessel “Lilian S” v Caltex Oil (Kenya) Ltd 1989 KLR, Source of Power (Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others [2012] eKLR) & Specialist Courts (Suleiman Mwamlole Warrakah & 2 Others v. Mwamlole Tchappu Mbwana & 4 Others [2018] eKLR: 12.From the above principles this application can be described as moot for want of jurisdiction by order and judgment passed by Musyoka J during the hearing and determination of the appeal in Criminal Appeal at Kakamega High Court referenced as Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR). As if that is not enough, the doctrine of res judicata as borrowed from section 7 of the Civil Procedure Act runs foul on the same issues on sentencing already dealt with by Kakamega High Court. This application does not even qualify to be litigated upon within the letter and spirit of article 50(6) (a) & (b) of the Constitution. The applicant in every aspect of the application build his legal house on sand and the rock of the law cannot come to his aid, this same application sinks to oblivion with no orders as to costs. DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026........................................R. NYAKUNDIJUDGE