https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6810

Swayi v Republic (Criminal Miscellaneous Application E025 of 2025) [2026] KEHC 6810 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6810 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E025 of 2025 RN Nyakundi, J May 18, 2026 IN THE MATTER OF SECTION 323, 333(2), 329, 216, 361(7), 362, 363, 364, 365, 366 OF THE CRIMINAL PROCEDURE CODE CAP 75 LAW OF KENYA AND IN THE MATTERS OF PARAGRAPH 3.3, 3.2.3, 3.3.1, 3.3.5, 4.8.16 [iii], 5.1.21 JUDICIARY SENTENCING POLICY GUIDELINES (SPGs) REVISED 2023 AND IN THE MATTER OF MURDER CASE CONTRARY TO SECTION 203 AS READ WITH 204 OF THE PENAL CODE Between Gilbert Opisa Swayi Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 25th November 2024 seeking the following orders:a.Spent.b.May this honorable Court be pleased to reduce, suspend or admit me a non-custodial sentence premised on my mitigating grounds of rehabilitation, old age, terminal illness and other exceptional circumstances.c.May this honorable Court waive any cost/fee involved and see to it that I will be present at the hearing thereof. 2.The application is based on the grounds that:a.The right to review the sentence pursuant to Article 50(2)(q), 22, 23(1)(3) of the Constitution of Kenya 2010.d.Old age, rehabilitation, terminal illness and other exceptional circumstances.b.Availability of the law that allows the same pursuant to Section 26(2), 35 of the Penal Code and others as stated before and others to be statedc.I am a poor man and in prison. 3.Which application is supported by the annexed affidavit sworn by Gilbert Opisa Swayi who deponed as follows:a.That I am an adult of sound mind hence competent and indisposition to make an oath and swear this affidavitb.That, I was arrested of an offence of Murder contrary to Section 203 as read with 204 of the Penal Codec.That the Court found me guilty convicted me and sentenced me to suffer death.d.That I was aggrieved and dissatisfied with both conviction and sentence and appealed in the first appellate Court at Kisumu Court of Appeale.That upon appeal, the appellate Court confirmed conviction but substituted my death sentence with a term of (30) Thirty years-judgment delivered on 11.10.2024f.That I herein step before the Seat of Justice with this humble application requesting this Honorable Court to be pleased to reduce my current sentence of 30years to a least prescribed one, or suspend it or admit me to a non-custodial sentence for the sentence is still manifestly excessive as per the circumstances of the caseg.That I have served 11 (eleven) years since my arrest for I was not on Bond/Bail pending trial.h.That since my arrest I have suffered two times from the attack of Tuberculosis in the year (2014-2012 and 2018-2019) that my health is wantingi.That my mother sold two pieces of land to educate me and after qualifying as a teacher I had not worked using the certificate If this sentence is left to stand, it will end after I have passed the retirement age. So, it's my prayer that you suspend or grand me a non-custodial sentence so that a may work for even 5 years at least to see the fruits of the sale of the lands that is being carried away by the river as I rot in jail.j.That the murder in this case was not my own making but from the mob-justice who heard my scream and come to rescue me from the thieves in my house. Hence my participation was minimal.k.That I am profusely remorseful and if I would have known the end of a long journey l would have not have screamed but take other precautions.l.That I am rehabilitated, reformed. socially re- adapted (my testimonials and certificates are available); 2 certificates in paralegalism, certificates of completion in prison fellowship, Bible correspondence courses certificates of completion, the prisoner’s journey certificate and certificates in Emmaus Bible School plus others to be stated on the hearing thereof.m.That I will suffer irreparable loss if orders sought shall not be granted. 4.The Applicant in support of his application canvassed the issues by way of written submissions on grounds to have his sentence reduced from 30 years jail sentence to a lesser offence in which the Court can exercise jurisdiction within the principles developed by the Supreme Court in Muruatetu and also the decision in Yussuf Dahar Orog v Republic (2007) eKLR, Mwanza vs Republic (2018) and Francis Muruatetu & 6 Others vs DPP, Elijah Munene Ndundu & Another vs Republic (1978) KLR 163 and S vs Crossley (677/06) (2007) ZASCA 127. 5.In summary the Applicant’s contention was that this Court considers complete leniency, mercy, and grace rather than condemnation and reduce his sentence, suspend it or admit him to a non-custodial sentence. 6.Whereas on the other hand the Respondent learned Prosecution Counsel Mr. Leina objected to any such submissions by the Applicant to have the sentence of 30 years’ imprisonment reduced to a lower denominator or even a variation to a non-custodial sentence. It was further the learned Prosecution Counsel that this Court lacks the discretion to review the sentence imposed upon the Applicant on appeal by the Court of Appeal. If indeed the Court does entertain such a thought, it was Learned Prosecution Counsel that it would be an exercise in futility and in violation of Article 165(3) of the Constitution. In a nutshell learned Prosecution Counsel further submitted that no compelling and substantial circumstances have been placed before this Court to warrant review of sentence as invited by the Applicant. 7.It is against this background that the Court would consider the scope of the review of jurisdiction and as to whether there are applicable constitutional and the CPC provisions for the remedy of a lesser sentence to be granted. Decision 8.It is desirable to bear in mind sentencing law in Kenya is prescribed by Parliament as underpinned in other tools like the Sentencing Policy Guidelines of the Judiciary 2023. Criminal sanctions are not merely intended to be painful in themselves, they are also an act of public censure. This censure is registered in the conviction which is a permanent diminution of the offender’s legal status. The change of status produces civil repercussions which continue as added punishment after the sentence itself has been executed. The very fact of conviction is properly regarded as a major act of being condemned and public stigmatization and is treated as a significant sanction in its own right. See Richard Fox and Arie Frieberg ‘Sentences without conviction: from Status to Contract in Sentencing’ (1989) 13 Criminal Law Journal 297. 9.In the application by the Applicant and his submissions he seems to suggest that the sentence imposed by the Court of appeal is still punitive, harsh and excessive and outside the proportionality in sentencing hence the reason why he seeks review as a remedy. A clear statement of the principle of proportionality is found in the High Court case of Hoare v The Queen (354) measure up to the prime utilitarian objectives of deterrence and rehabilitation. research findings relating to rehabilitation, in particular, were at one point so disappointing, that a ‘nothing works’ was promulgated (Martinson 1974). The parameters of proportionality are also explained by Ashworth 1993 in which he remarked that the seriousness of a crime has two dimensions: harm and culpability. Harm refers to the injury done or risked by the act; culpability to the factors of intent, motive and circumstances that determine the extent to which the offender should be held accountable for the act (1991:3) 10.The of review sentence by the High Court tend to follow the guidelines issued by the Court of Appeal in the Bernard Gacheru v Republic [2002] eKLR the Court held that:“It is now settled law, following several authorities by this Court and by the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” 11.The point that I wish to make here admittedly is that the Superior Court particularly the Court of Appeal considered all aspects of the offence of murder contrary to Section 203 as punishable under Section 204 of the Penal Code and the initial sentence which was passed by the Trial Court. In their considered opinion the Learned Judges a bench of three (3) ruled as follows:a.We note that the sentencing here was done prior to the Muruatetu case(Supra) and the trial judge pointed out that there was only one punishment which was there; and in so doing the Court did not use its discretion in making an informed decision with regard to sentencing. It is no longer the case that the sentence for murder is the mandatory death sentence prescribed in section 204 of the Penal Code. This position changed with the Supreme Court's decision in the Muruatetu case (Supra). We consider the circumstances under which the offence took place, on a suspicion that the deceased had stolen Kshs. 10,000/- from the 1st appellant and together with the 2nd Appellant they brutally attacked the deceased, inflicting injuries which ultimately snuffed the life out of him.b.The upshot is that all factors considered in this case a sentence of thirty (30) years imprisonment is appropriate. We therefore set aside the death sentence imposed by the High Court and substitute it with a prison term of thirty (30) years imprisonment and in compliance with the provisions of Section 333(2) of the Criminal Procedure Code. The sentence shall run from 18m March 2013 being the date when the Appellants were arrested and taking into consideration that the Appellants remained in custody throughout the trial; and to that extent the appeal on sentence succeeds. 12.By dint of this decision by the Court of Appeal on sentence in pari materia doctrine or res judicata under Section 7 of the CPA applies in equal measure to this criminal proceeding presumably filed under Section 362 and 364 of the CPC. This is the standard of law on res judicata: “No Court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 13.The species of res judicata are well articulated by the Supreme Court in the cases of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) held thus;“…The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].58.Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under have distinct heads: (i) the matter in issue is identical in both suits;(ii)the parties in the suit are the same;(iii)sameness of the title/claim;(iv) concurrence of jurisdiction; and (v) finality of the previous decision.59.That Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, [2012] eKLR, thus: The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction…” 14.How does this doctrine apply to the facts of this case? The facts and the decision by the Court of Appeal are very crystal clear that the issue of sentence was heard and determined conclusively in favour of the Applicant. This is a superior Court ranked after the High Court and this Court would have no jurisdiction to entertain a cause of action which has been heard on the merits by the Court of Appeal. 15.Therefore, the rights being claimed by the Applicant on resentencing or a retrial under Article 50(6)(a)(b) of the Constitution are extinguished by application of the law on res judicata and estoppel. These are jurisdiction canons of the law which preclude any claimant, Petitioner or Applicant to come to this Court to seek the same remedies on review of sentence which has been dealt with by another Court of concurrent jurisdiction and for our case the Apex Court of Appeal on such jurisdictional issues on conviction and sentence. This application on review and reduction of sentence is also considered lost for want or merit by the Applicant and dismissed under Section 382 of the Criminal Procedure Code. DATED & DELVERED AT ELDORET THIS 18TH DAY OF MAY 2026.R. NYAKUNDIJUDGE