Oloo v Republic (Miscellaneous Criminal Application E031 of 2026) [2026] KEHC 12442 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E031 OF 2026** **DAVID OCHIENG OLOO……………………………………….APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide the chamber summons dated 26th February, 2026 seeks an order for that the court considers his further mitigation and subsequently reviews or revises and reduces his sentence of 40 years. 2. The grounds upon which the application is premised are that the Applicant was initially charged with the offence of murder contrary to *Section 203* as read with *Section 204* of the *Penal Code* in *Kisumu High Court Criminal Case No. 40 of 2015.* He was convicted and sentenced to death on 22nd May, 2017. 3. On appeal, in *Kisumu Court of Appeal Criminal Appeal No. 268 of 2018,* the Court of Appeal set aside the death sentence and, on 23rd December, 2024, substituted it with a determinate sentence of 40 years imprisonment. 4. The Applicant contends that the sentence of 40 years imprisonment is excessive and disproportionate when compared with sentences imposed upon other offenders convicted of murder, whom he asserts have received prison terms ranging between 10 and 25 years. 5. The Applicant further avers that he has undergone substantial rehabilitation and reformation during his incarceration through participation in prison rehabilitation programmes, and that he has learnt from his past conduct. He maintains that the objectives of sentencing can now be achieved by a less severe sentence. 6. It is further the Applicant’s case that he is genuinely remorseful for the offence committed, regrets the circumstances surrounding the death of his wife, and seeks forgiveness from God, the deceased’s family, and the court. He expresses his readiness to reintegrate into society as a law-abiding and self-supporting citizen. 7. The Applicant also states that prior to his incarceration he was the sole breadwinner for his children and that his imprisonment has occasioned them considerable hardship and suffering. 8. Lastly, the Applicant further contends that the lengthy period of imprisonment remaining to be served has subjected him to mental and psychological anguish. 9. The application is supported by the Applicant's affidavit in which he deposes that he was charged with the offence of murder contrary to *Section 203* as read with *Section 204* of the *Penal Code* in *Kisumu High Court Criminal Case No. 40 of 2015,* was convicted, and on 22nd May, 2017, was sentenced to suffer the death penalty. 10. Being dissatisfied with the sentence, he appealed to the Court of Appeal in *Kisumu Court of Appeal Criminal Appeal No. 268 of 2018*. He avers that, on 23rd December 2024, the Court of Appeal substituted the death sentence with a determinate sentence of 40 years imprisonment. 11. The Applicant contends that, in substituting the sentence, the Court of Appeal did not take into account his current mitigating circumstances, thereby necessitating the present application for resentencing. 12. He further deposes that during the approximately ten years he has spent in custody, he has undertaken various prison rehabilitation and reformation programmes, including spiritual and life-skills courses, for which he has obtained certificates. He also states that he has maintained exemplary discipline throughout his incarceration and has not been found culpable of any prison offence. 13. The Applicant avers that he is genuinely remorseful for the death of his wife, which he attributes to his lack of life skills at the material time. He further states that he has since reconciled with the deceased’s family, who have forgiven him and continue to visit him while in prison. 14. The Applicant further deposes that he is 43 years old and believes he still has the opportunity to rebuild his life and contribute positively to the upbringing of the deceased’s children, his family and society. He therefore beseeches the court to exercise leniency and grant him a second chance by imposing a more lenient sentence. 15. The application is opposed vide the replying affidavit of **Mercy Mutheu Muema,** Prosecution Counsel, in which she contends that the Applicant was indeed charged with the offence of murder contrary to *Section 203* as read with *Section 204* of the *Penal Code* in *Kisumu High Court Criminal Case No. 40 of 2015,* convicted, and sentenced to death on 22nd May, 2017. 16. She further states that the Applicant appealed against both conviction and sentence in *Kisumu Court of Appeal Criminal Appeal No. 268 of 2018*, where the Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence by setting aside the death sentence and substituting it with a determinate sentence of 40 years imprisonment with effect from 27th August, 2015. 17. The deponent avers that the present application, by which the Applicant seeks a further reduction of the sentence imposed by the Court of Appeal, is incompetent, misconceived and amounts to an abuse of the court process. 18. It is her contention that the sentence sought to be reviewed was imposed by the Court of Appeal, a superior court established under *Article 164* of the *Constitution*, and that this court lacks jurisdiction to review, vary, reduce or otherwise interfere with a sentence imposed by that Court. 19. She maintains that any such intervention would amount to the High Court sitting on appeal over the Court of Appeal, contrary to the constitutional hierarchy of courts. 20. The deponent further states that the Court of Appeal exercised its sentencing discretion after considering the gravity of the offence, the Applicant’s mitigation, and the applicable legal principles, and that the Applicant had a full opportunity to present all mitigating circumstances before that Court. She therefore contends that the Applicant cannot re-litigate the issue of sentence before the High Court. 21. She further invokes the doctrine of *functus officio*, contending that the Court of Appeal conclusively determined the question of sentence and that its decision is final and binding. 22. According to the deponent, if the Applicant is dissatisfied with the sentence imposed by the Court of Appeal, the proper recourse lies in an appeal to the Supreme Court, where permissible under *Article 163(4)* of the *Constitution,* and not through a fresh application before the High Court. 23. Finally, the deponent acknowledges the Applicant’s assertions regarding rehabilitation, remorse and reconciliation with the deceased’s family but maintains that such considerations cannot confer jurisdiction upon this court to interfere with the sentence imposed by the Court of Appeal, and are matters that may instead be addressed through the prison administration under the applicable law. 24. She accordingly urges the Court to dismiss the application. 25. I have carefully considered the application, the supporting affidavit, the replying affidavit, and the rival positions taken by the parties. In my respectful view, the sole issue falling for determination is whether this court has jurisdiction to review, revise or otherwise interfere with a sentence imposed by the Court of Appeal. 26. Jurisdiction is the lifeblood of every judicial proceeding. Without it, a court must immediately down its tools. 27. The Applicant invites this court to reconsider and reduce a sentence of 40 years imprisonment that was not imposed by the High Court, but by the Court of Appeal in the exercise of its appellate jurisdiction. 28. The *Constitution* establishes a clear hierarchy of courts. Under *Article 164,* the Court of Appeal is superior to the High Court, and it follows that the High Court cannot purport to review, vary or sit on appeal against a sentence lawfully imposed by the Court of Appeal. 29. To do so would be to arrogate unto itself a jurisdiction that neither the *Constitution* nor any statute confers upon it. 30. Equally significant is the principle of finality in litigation. The question of the appropriate sentence was conclusively determined by the Court of Appeal after considering the Applicant’s appeal against both conviction and sentence. 31. Whether or not the Applicant believes that the Court of Appeal attached insufficient weight to his mitigation, rehabilitation, remorse or reconciliation with the deceased’s family, those are matters that were, or ought to have been, canvassed before that Court. 32. This court cannot reopen a matter that has already been finally adjudicated by a superior court merely because the Applicant desires a more favourable outcome. 33. I have nevertheless considered the Applicant’s averments regarding his rehabilitation, good prison conduct, remorse, reconciliation with the deceased’s family and the hardship occasioned to his children. Those are undoubtedly relevant considerations in an appropriate sentencing forum. However, however compelling they may be, they cannot confer jurisdiction where none exists. Jurisdiction is donated by the *Constitution* and statute, not by the equities or merits of a particular case. 34. If the Applicant remains dissatisfied with the sentence imposed by the Court of Appeal, the law provides the appropriate avenues for redress. Subject to the constitutional requirements under *Article 163(4)* of the *Constitution,* he may pursue such remedy as may be available before the Supreme Court. 35. Alternatively, should he consider himself deserving of executive clemency on account of his rehabilitation, remorse and other post-conviction circumstances, he may petition the Advisory Committee on the Power of Mercy for consideration under *Article 133* of the *Constitution* and the applicable statutory framework. 36. Those avenues, and not a fresh application before the High Court, constitute the proper mechanisms for seeking further relief. 37. In the premises, I find that this court lacks jurisdiction to review, revise or reduce the sentence imposed upon the Applicant by the Court of Appeal. The application is therefore incompetent and cannot be entertained. 38. Accordingly, the chamber summons dated 26th February, 2026 is hereby dismissed. 39. 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.**