https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12140

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E004 OF 2026** **ERICK OTIENO ODERO………………………………………..APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide his notice of motion dated 13th January, 2026 seeks an order for the review of his sentence, so that he may be accorded the least punitive sentence, contending that he is remorseful for having committed the offence and praying that the custodial sentence imposed upon him be substituted with a non-custodial sentence. 2. The application is supported by the Applicant’s affidavit in which he deposes that he was charged with and convicted of the offence of murder contrary to *Section 203* as read with *Section 204* of the *Penal Code.* He states that he was initially sentenced to death but, upon filing *Petition No. E01 of 2021,* the sentence was reviewed and substituted with a term of thirty (30) years imprisonment on 26th September, 2023. 3. He avers that he does not challenge either his conviction or the sentence imposed by the court. Rather, he prays that the unserved portion of the sentence be further reduced and substituted with a less punitive sentence. 4. The Applicant further deposes that he has undergone rehabilitation while in prison, as evidenced by the certificates annexed to his application. He states that he has served a considerable period of imprisonment and therefore beseeches the court to exercise leniency in determining his application. 5. The Respondent opposes the application and to that end filed a replying affidavit sworn on 11th June, 2026 by **Ms. Mercy Mutheu Muema,** Prosecution Counsel, in which she deposes and admits that the Applicant was convicted of the offence of murder contrary to *Section 203* as read with *Section 204* of the *Penal Code* and was initially sentenced to death. 6. She further states that, as acknowledged by the Applicant himself, the sentence was subsequently reviewed in *Petition No. E001 of 2021* and substituted with a term of thirty (30) years imprisonment on 26th September, 2023. 7. **Ms. Muema** contends that the sentence of thirty years imprisonment was imposed by this court in and that the present application, which seeks a further reduction of that sentence, effectively invites the court to review or vary its own earlier decision. She maintains that the court lacks jurisdiction to do so through a fresh miscellaneous application. 8. She further deposes that the proper avenue for seeking a further reduction of the sentence of thirty years is by way of an appeal to the Court of Appeal, and not by invoking the revisionary jurisdiction of this court. According to her, the present application is an attempt to circumvent the appellate process. 9. **Ms. Muema** also invokes the doctrine of *functus officio,* asserting that having already pronounced itself on the Applicant’s sentence *in Petition No. E01 of 2021,* this court cannot reopen, vary or reduce that sentence except through a procedure authorized by law, which the present application is not. 10. She further avers that the matters relied upon by the Applicant, including his rehabilitation, remorse, period already served in custody and youthful age at the time of the offence, were issues that were or ought to have been considered when the court determined *Petition No. E001 of 2021* and cannot properly be re-litigated through a fresh application. 11. Finally, **Ms. Muema** contends that the application is barred by the doctrine of *res judicata* since the question of the Applicant’s sentence was conclusively determined in *Petition No. E001 of 2021* between the same parties before the same court. 12. She therefore deposes that the application is incompetent, misconceived and an abuse of the court process, and urges the court to dismiss it for want of jurisdiction. 13. Having considered the application, the supporting affidavit and the replying affidavit, the court is of the view that the sole issue for determination is whether it has the jurisdiction to entertain the Applicant's prayer for a further review and reduction of the sentence imposed upon him in *Petition No. E01 of 2021.* 14. It is common ground that the Applicant was initially sentenced to death following his conviction for the offence of murder contrary to *Section 203* as read with *Section 204* of the *Penal Code.* 15. It is equally undisputed that, pursuant to *Petition No. E001 of 2021,* this court revisited the sentence and, on 26th September, 2023, substituted the death sentence with a custodial sentence of thirty (30) years imprisonment. 16. The Applicant expressly states that he does not challenge either his conviction or the sentence imposed. Rather, he seeks a further reduction of the unserved portion of that sentence on account of his rehabilitation, remorse and the period already served in custody. 17. This court is unable to grant the orders sought. Having determined the Applicant’s petition for resentencing and imposed a sentence of thirty years imprisonment, the court became *functus officio* in respect of that issue. 18. Save where expressly authorized by statute or other applicable law, the High Court cannot sit on appeal over, review or vary its own final decision through a fresh miscellaneous application. The proper recourse available to an aggrieved party dissatisfied with the sentence imposed upon resentencing is to challenge that decision before the *Court of Appeal* and not to invite the same court to reconsider the merits of its own judgement. 19. The grounds advanced by the Applicant, namely his remorse, rehabilitation and the period already served in prison are matters that either were or ought to have been canvassed during the resentencing proceedings. They cannot found a fresh application inviting this court to reopen a matter that has already been conclusively determined. 20. To entertain such an application would undermine the principle of finality of litigation and amount to an impermissible exercise of appellate jurisdiction over the court's own decision. 21. Consequently, the court finds that it lacks jurisdiction to entertain the present application. The notice of motion dated 13th January, 2026 is therefore incompetent and is hereby dismissed. 22. Orders accordingly. DELIVERED (virtually) DATED and SIGNED this 31st day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**