https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11869

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **CRIMINAL DIVISION** **MISCELLANEOUS CRIMINAL APPLICATION NO.E274 OF 2025** **(Arising from the notes on ruling and ruling in High Court Miscellaneous Criminal Application No E083 of 2023 before Hon. Justice A. Muteti delivered on 3rd November 2025)** **IN THE MATTER OF: CRIMINAL NO. 115 OF 2014 AT HIGH COURT MILIMANI** **AND** **IN THE MATTER OF:** **Judicial Service Act: Paragraph 2.3.18, 3.3.4, 3.3.5 of Sentencing Guidelines 2023** **AND** **IN THE MATTER OF: Probation of Offenders Act** **AND** **IN THE MATTER OF: Article 50(2)(p), 23(1), 159(2)(c), 165 of the Constitution of Kenya,** **2010** **AND** **IN THE MATTER OF: Sections 333(2), 362, 364 and 365 of the Criminal Procedure Code** **(Cap 75 Laws of Kenya)** **AND** **IN THE MATTER OF: Section 46 of the Prisons Act (Cap 90 Laws of Kenya)** **AND** **IN THE MATTER OF: Review and/or Variation of Ruling Delivered on 3rd November** **2025 in Misc Application E083 of 2023 at Milimani High Court** **BETWEEN** **ERASTUS NGURA ODHIAMBO…………………………….APPLICANT** **VERSUS** **REPUBLIC..............................................................................RESPONDENT** **RULING** 1. The applicant in this matter seeks a review of this court’s Ruling in Criminal Application No. E083 of 2023. 2. The applicant sought the following orders;- **a). THAT** this Honourable Court be pleased to review, vary, and/or set aside in part its ruling delivered on 3rd November 2025 to the extent that it failed to consider the Applicant's full grounds for review. **b).** **THAT** this court be pleased to review its own ruling, because of missing documents in the court file. The ruling was based on only one item (ground) whilst all other supplementary submissions, and all other annexures were clearly in the portal. **c**). **THAT** the Honourable Court do consider and determine the following grounds which were duly filed but omitted from the ruling: **i).** The period spent in remand custody before sentencing which was not factored under Section 333(2) of the CPC; **ii).** The Applicant's deteriorating health condition; **iii).** The Applicant's demonstrated rehabilitation and reform status; **iv).** The Applicant's third-party family responsibilities; **v).** The Prison authorities' recommendations **d).** THAT upon such review, this Honourable Court be pleased to reduce or vary the Applicant's remaining sentence and/or substitute it with a non-custodial probationary sentence in view of the Applicant's reformation, health, and humanitarian circumstances. **e).** **THAT** this court also consider the Chief Justice Memo dated 7th December 2022 on decongestion of prisons and vary the applicant's sentence since he has served a bigger percentage of the initial sentence imposed. **f).** **THAT** the Hon Court gives any other appropriate order 1. The application was premised on the following grounds: **i).** The Applicant was convicted of murder and sentenced to twenty (20) years imprisonment, of which he has already served eight (8) years. **ii).** He previously filed Criminal Application No. E083 of 2023 before this court seeking review/reduction of his sentence on the grounds of reconciliation (ADR), time spent in remand, rehabilitation, health, and third-party responsibilities. **iii).** The Court's ruling delivered on 3rd November 2025 only addressed the issue of reconciliation (ADR) and omitted to consider the other key grounds, despite being duly filed electronically and supported by documents. **iv).** The Applicant promptly raised this omission with the learned Judge, who advised that he could file a fresh application for review of the ruling. **v).** During the ruling the Hon Judge noted that the applicants purported filed documents were missing in the court file, yet they were filed electronically in his supplementary submissions date 30th May 2023 (filed via CTS portal on 23/06/2023 at 2300hrs), supplementary annexures dated 9th June 2025 (filed via CTS portal on 9/06/2025 at 1250hrs), KNH cancer diagnosis histopathology report filed via CTS on 11/06/2025 at 0856hrs. That the CTS portal serves as the evidence that the applicant filed those documents, even though they were not considered **vi).** The Applicant's rights under Article 50(2)(p) of the Constitution entitle him to benefit from the least severe punishment and to a fair consideration of all relevant mitigating factors. **vii).** Under Sections 362 and 364 of the Criminal Procedure Code, this Honourable Court has jurisdiction to review its own ruling and correct omissions, errors, or oversights that may lead to miscarriage of justice. **viii).** Under Section 333(2) CPC, time spent in remand must be taken into account at sentencing, and failure to do so warrants rectification. **ix).** The Applicant's rehabilitation, reform, and good conduct are supported by the prison's recommendation and his consistent participation in reformation programs. **x).** The applicant is an ailing person, suffering from chronic Nasopharyngeal Cancer, and has been in and out of hospital in the last two years as evidenced by the KNH medical report and other medical documents annexed herein. **xi).** This application is made in good faith, without undue delay, and in the interest of justice. **xii).** THAT Paragraph 2.3.18 of Sentencing Guidelines 2023 provides that; "Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed" **xiii).** THAT Paragraph 3.3.4 -3.3.5 of Sentencing Guidelines 2023 provides that; 3.3.4-When imposing sentencing orders against terminally ill and elderly offenders, a court should ensure that the sentence imposed does not amount to an excessive punishment in view of the extent of illness and age, as well as in light of the offence committed. In particular, the court should ensure that the sentence imposed does not amount to cruel, inhuman or degrading treatment in view of the extent of illness or age of the offender. 3.3.5-Non-custodial sentences - or suspended sentences - should be considered unless, in light of the nature and seriousness of the offence committed and other factors, justice would demand the imposition of a custodial sentence." **xiv).** **THAT** the applicant be considered for release on medical grounds, to ensure he receives the necessary medical treatment and care to manage his life-threatening conditions. Such a release would not only be in the best interest of his health and well-being but would also align with humanitarian principles and the ethical obligations of promoting adequate healthcare to all individuals, regardless of their legal status. **xv).** The applicant has made efforts to reconcile with the victim's family to promote healing and cohesive coexistence, and to enhance his acceptance once released as per Article 159(2)(c) of the Constitution. **xvi).** The applicant has 6(six) school going children who have been surviving on his saved resources since his conviction in 2018. The resources have since been depleted and they stand to suffer. The applicant calls upon this court to help protect them by considering him for early release or non-custodial options for the remainder of the sentence, so that he can take up his third party parental responsibilities. **xviii).** The application is supported by the annexed affidavit of ERASTUS NGURA ODHIAMBO and further grounds to be adduced at the hearing hereof. 1. The applicant also swore an affidavit in support of the application in which he deponed that he is an adult Kenyan citizen of sound mind and the applicant in the present application. 2. That He states that he was arrested and charged with the offence of murder contrary to section 204 of the Penal Code on 12th December 2014. Following a full trial in **High Court Criminal Case No. 115 of 2014**, he was convicted and sentenced to twenty (20) years' imprisonment. Dissatisfied with both the conviction and sentence, he appealed to the Court of Appeal in **Criminal Appeal No. 115 of 2018**, but the appeal was dismissed and the sentence of twenty years' imprisonment upheld. 3. He further averred that the present application is not intended to challenge or seek a review of the Court of Appeal's decision. Rather, it is premised on a broader interpretation of **Article 50(6) of the Constitution of Kenya, 2010**, as elucidated by the Supreme Court in **TOM MARTIN KIBISU –VS– REPUBLIC [2014] eKLR, Application No. 3 of 2014**. 4. He contends that the decision expands access to justice where new and compelling evidence arises. In his case, he asserts that the rehabilitation programmes he has undertaken constitute new and compelling circumstances capable of influencing the Court to impose a lesser sentence pursuant to **Article 50(2)(p) of the Constitution**, since the circumstances justifying his continued detention have materially changed. 5. The Applicant further deponed that he previously filed **Criminal Application No. E083 of 2023** before the High Court seeking a review of his sentence on the grounds of reconciliation through Alternative Dispute Resolution (ADR), the period spent in remand custody, rehabilitation, deteriorating health, and third-party responsibilities. 6. He states that the ruling delivered on **3rd November 2025** addressed only the issue of reconciliation while failing to consider the remaining grounds, notwithstanding that they had been duly filed electronically. He annexes copies of the electronically filed documents as **Annex-1**. 7. He further averred that upon bringing the omission to the attention of the learned Judge, he was informed that the omitted documents were not contained in the physical court file and was consequently advised to file a fresh application for review. 8. The Applicant states that he has since obtained confirmation that the omitted documents had indeed been successfully uploaded electronically, and he annexes such confirmation as **Annex-2**. 9. The Applicant deponed that he had undergone substantial rehabilitation during his incarceration and is genuinely remorseful for the offence, and has maintained exemplary conduct while in prison. 10. In support of that assertion, he annexed a prison recommendation as **Annex-3**. He further stated that he has actively pursued self-improvement through various rehabilitation and educational programmes, including paralegal training, the completion of a **Master of Business Administration** degree at **Mount Kenya University**, and his ongoing pursuit of a **Master of Science in Project Management** at the same institution. 11. The Applicant also states that he has developed serious health complications while serving his sentence. 12. He deponed that he suffers from multiple chronic illnesses, namely **Pulmonary Tuberculosis (TB)** and **Nasopharyngeal Cancer**, and that he has frequently been admitted to hospital over the past two years. He relied on the annexed medical reports and treatment records marked **Annex-4**. 13. He further averred that he has dependent family members who require his care and support. 14. The Applicant further stated that he is the father of six school-going children who have depended on the financial resources he had saved prior to his conviction in 2018. 15. He also deponed that those resources have since been exhausted, thereby exposing the children to hardship. He annexed copies of their birth certificates as **Annex-5**.] 16. The Applicant additionally averred that he has taken deliberate steps to reconcile with the victim's family with the objective of restoring relations, promoting peaceful coexistence, and mitigating the aggravating circumstances surrounding the offence. He stated that the victim's father has sworn an affidavit confirming the reconciliation, which is annexed as **Annex-6**. 17. The Applicant concluded by stating that the affidavit is sworn in support of the present application and respectfully urged the Court to grant him a second chance by permitting further mitigation based on his current circumstances. 18. The applicant sought leniency from the court urging the court to vary or substitute the remainder of his custodial sentence with a non-custodial sentence, asserting that the facts deponed therein are true to the best of his knowledge, information, and belief. **ANALYSIS AND DETERMINATION** 1. The application by the applicant seeks the review of the earlier ruling by the court declining his request for review of sentence. 2. The court in the ruling of 3rd November 2025 at paragraph 34 declined the application amongst other grounds citing the want of jurisdiction thus it is not true that the only issue considered by the court was that of post- conviction ADR between the applicant and the deceased’s father. 3. The court thus is invited to revisit its own decision without anything being said about the issue of jurisdiction. 4. The court has looked at all the documents relied on by the applicant in the present application and the contents of his affidavit. 5. The court however notes that what the applicant is attempting to do is to plead with the court to allow him to offer further mitigation on account of illness and seek mercy from this court on that account. 6. Whereas the court commiserates with the situation of the applicant, the dilemma that remains unresolved in this court is whether the court can invoke the provisions of Article 165 of the Constitution and Sections 362 and 364 of the CPC to grant the relief that the applicant seeks. 7. The court sadly does not find any jurisdictional window to tamper with the decision of a judge of concurrent jurisdiction and the court of appeal decision delivered on 24th April 2020. 8. The court does however note that in the Sentencing notes of the Learned Hon lady Justice Mutuku S.N delivered on 1st August 2018 the learned judge imposed a sentence of 20 years but made no reference to the provisions of Section 333(2) of the Criminal Procedure Code which is couched in mandatory terms requiring a court to take into account the period spent in custody by an accused person before sentence. 9. That is the only error apparent on the face of the record that the court can remedy by making an order that the prison term of 20 years be computed less the period spent in remand. 10. The court also noted that the applicant was granted bail on 16th November 2015 thus in computing the prison term the prison authorities must take that into account and only reduce the period actually spent in remand. 11. The court reiterates that it cannot convert a prison sentence handed down by a judge of the High Court and confirmed by the Court of appeal to a non- custodial sentence. The report by the probation office casts doubt as to whether indeed the family of the deceased has forgiven the accused because one wonders why would the family of the deceased would avoid being interviewed by the probation officer when. I shall say no more. 12. The prison authorities are hereby ordered to ensure that the accused person receives the best medical care he can access in line with **Article 43** of the **Constitution** and to compute his sentence as per this ruling. 13. The application therefore partially succeeds to that limited extent. 14. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **30th** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Applicant – absent Mogere for state