https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12911

Omanyo v Republic (Miscellaneous Criminal Application E130 of 2024) [2026] KEHC 12911 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12911 (KLR) Republic of Kenya In the High Court at Kisii Miscellaneous Criminal Application E130 of 2024 Sifuna Nixon, J July 31, 2026 Between Dennis Mateyo Omanyo Applicant and Republic Respondent Ruling 1.The Applicant was charged with the Offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. That was in Kisii Magistrates court Criminal Case No. 2261 OF 2009. In which he was convicted of the offence and sentenced to life imprisonment. 2.Aggrieved by the said conviction and sentence, the Applicant filed an Appeal in this Court. The same was heard by Sitati J, who in a judgement delivered on 5th June 2014, dismissed it in its entirety. 3.Aggrieved by the said judgment, and which is a decision of this Court, the Applicant filed an Appeal in the Court of Appeal at Kisumu. In a judgement delivered on 22nd September 2023, the appeal succeeded on sentence only but failed on the conviction. With the sentence of life imprisonment being reduced to 25 years imprisonment, commencing on the date of the sentence of the trial court. 4.He has by this Application sought a review of that sentence of 25 years, so that the sentence takes into account the period he spent in remand custody. The Application is brought under Section 333 (2) of the Criminal Procedure Code (Cap 75 Laws of Kenya). Which provides that when imposing sentence, the time that the accused has spent in custody shall be taken into account. 5.The Court of Appeal reduced the initial sentence from a life imprisonment, to 25 years imprisonment, and directed that the sentence shall run from the date of the original sentence in the trial court. 6.In this Application the Applicant has urged this Court to order that the sentence of 25 years imprisonment take into account the period he spent in pre-conviction custody. Which he has computed and stated that it is 7 months and16 days. Determination 7.The sentence he is currently serving having been imposed by the Court of Appeal, any review of that sentence can only be by the Court of Appeal and not this Court. Besides the Court of Appeal in its said judgement expressly stated that the new sentence of 25 years was to run from the date of sentence in the subordinate court. From the original record of the subordinate court, that date is 28th May 2010. 8.Notably, the Applicant filed earlier filed a Petition in this Court, challenging that sentence and seeking a review of the lower court’s said sentence, and seeking a re-sentencing. That was KISII HC CRIMINAL PETITION NO. 10 OF 2010). The Petition was based on the Supreme Court’s decision in Francis Karioko Muruatetu & Another v. Republic [2017] eKLR. 9.In a judgement that was delivered on 9th February 2022, the Petition was dismissed. In so dismissing the Petition, Ougo J, held that the Supreme Court’s directions in the Muruatetu case, applied only in respect of sentences in murder cases. 10.Subsequently, the Applicant has changed from urging for sentence review on the basis of the Muruatetu decision, to urging review under section 333 (2) of the Criminal Procedure Code; on account of the pre-conviction custody. Final Disposition 11.The sentence the Applicant is currently serving, having been imposed by the Court of Appeal, the Applicant cannot climb down the court hierarchy and seek to review that sentence in this Court. This is because the Court of Appeal being higher to this Court, a review of its sentence for whatever reason and on whatever grounds, should be sought either in the Court of Appeal itself or higher in the Supreme Court. 12.In the end I find that this Application is misconceived, hence hereby dismiss it accordingly. DATED AND DELIVERED AT KISII ON THIS 31ST DAY OF JULY 2026.PROF (DR) NIXON SIFUNAJUDGE