https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12089

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT HOMABAY** **MISC. CRIMINAL APPLICATION NO. E018 OF 2026** **FELIX OTIENO OKONGO….....…………….……..……..…..…………....…….……APPLICANT** **VERSUS** **REPUBLIC…………………………………………………………..........….………..RESPONDENT** **RULING** 1. Before the Court is the Applicant's Notice of Motion dated 18th February 2026 seeking a reduction of the sentence imposed upon him. The application is supported by the Applicant's affidavit sworn on the same date, in which he sets out the background to premise the application. 2. He deposes that he was convicted by the Principal Magistrate's Court at Ndhiwa of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and, upon conviction, was sentenced on 5th June 2024 to serve a twenty (20) years' imprisonment term. 3. He was dissatisfied with both the conviction and sentence, and preferred an appeal before the High Court in Criminal Appeal No. E036 of 2024, which was subsequently dismissed in its entirety. 4. For this application, he deposes that he is remorseful for his actions, has undergone rehabilitation during his incarceration, and has undertaken theological training. He also avers that his family depends on him for support and urges the Court to exercise leniency by reducing his sentence. 5. The application is opposed by learned counsel for the Respondent, Ms. Oduor, who submits that, having already dismissed the Applicant's appeal on both conviction and sentence, the Court has become *functus officio* and cannot revisit the issue of sentence. Counsel argues that to do so would amount to the Court arrogating to itself the jurisdiction to supervise or review its own decision. 6. The Court has considered the application, the parties' respective positions and the record. At the hearing, the Applicant clarified that he does not challenge either his conviction or the sentence imposed by the trial court but merely seeks a reduction of the custodial sentence. The record, however, shows that the propriety of the sentence was directly in issue in Criminal Appeal No. E036 of 2024, in which this Court upheld both the conviction and the sentence. Consequently, the court is functus officio and lacks the requisite jurisdiction to reopen or reconsider the issue of sentence through the present application. 7. That finding notwithstanding, the Court has noted from the record that the Applicant was arrested on 13th September 2021 and remained in custody until 16th September 2021, when he was released on bond. Section 333(2) of the Criminal Procedure Code imposes a mandatory obligation upon a sentencing court to take into account the period an accused person has spent in custody prior to sentencing. The record does not demonstrate that the three (3) days the Applicant spent in pre-trial custody were taken into account in computing his sentence. To that limited extent, the Court is entitled to intervene to give effect to the statutory requirement. 8. Accordingly, the Applicant shall have the benefit of Section 333(2) of the Criminal Procedure Code, in that the three (3) days spent in custody between 13th September 2021 and 16th September 2021 shall be taken into account in computing his sentence. 9. Save for the adjustment directed under Section 333(2) of the Criminal Procedure Code, the prayer seeking a reduction of sentence is without merit and is hereby declined. 10. It is so ordered. Dated, signed and delivered at Lodwar this 30th day of July 2026 Patrick J O Otieno Judge