[2025] KEHC 9285 (KLR)
The High Court lacks jurisdiction to entertain an application seeking to substitute a sentence that has already been determined and imposed by the Court of Appeal. Once the appellate court has rendered its decision on sentence, the High Court cannot revisit or alter that sentence, as doing so would amount to sitting...
Source-derived case information.
- Citation
- [2025] KEHC 9285 (KLR)
- Parties
- Applicant: Samuel Omondi Gombe alias Agok; Applicant: Vitalis Obula Okendo alias Daktari; Applicant: Hezron Otieno Okendo alias Otis; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Judgment Date
- 30 June 2025
- Case Number
- Criminal Miscellaneous Application E233 of 2024
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application to Substitute Custodial Sentence With Non Custodial Sentence
- Outcome
- application dismissed for want of jurisdiction
- Judges
- A Mabeya
- Legal Topics
- Murder Sentencing, Jurisdiction of High Court, Sentence Substitution, Appellate Review
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Omondi Gombe alias Agok
Applicant
Vitalis Obula Okendo alias Daktari
Applicant
Hezron Otieno Okendo alias Otis
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application to Substitute Custodial Sentence With Non Custodial Sentence
Legal Issues
- 1 Does the High Court have jurisdiction to substitute a sentence imposed by the Court of Appeal with a non-custodial sentence?
- 2 Can the applicants' custodial sentence of 15 years be substituted with a non-custodial sentence for the same period?
Ratio Decidendi
The High Court lacks jurisdiction to entertain an application seeking to substitute a sentence that has already been determined and imposed by the Court of Appeal. Once the appellate court has rendered its decision on sentence, the High Court cannot revisit or alter that sentence, as doing so would amount to sitting on appeal over the appellate court's decision, which is impermissible under the doctrine of hierarchy of courts and the principle that jurisdiction must be expressly conferred by law. The applicants' motion is therefore dismissed for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application to substitute the 15-year custodial sentence with a non-custodial sentence is dismissed.
- The High Court has no jurisdiction to entertain the motion.
Full Case Text
Judgment text and source record
25 paragraphs
Gombe alias Agok & 2 others v Republic (Criminal Miscellaneous Application E233 of 2024) [2025] KEHC 9285 (KLR) (30 June 2025) (Ruling)
Neutral citation: [2025] KEHC 9285 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Miscellaneous Application E233 of 2024
A Mabeya, J
June 30, 2025
Between
Samuel Omondi Gombe alias Agok
1st Applicant
Vitalis Obula Okendo alias Daktari
2nd Applicant
Hezron Otieno Okendo alias Otis
3rd Applicant
and
Republic
Respondent
Ruling
1. Samuel Omondi Gombe, Vitalis Obula Okendo and Erick Hezron Otieno Okendo ‘the applicants’, were charged before the High Court with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. Following their trial, they were found guilty, convicted and sentenced to suffer death on 28/3/2017. Their appeal to the Court of Appeal vide Kisumu CRA No. 140 of 2017 was determined on 17/5/2023.
3. In its Judgment, the Court of Appeal (Kiage, Tuiyott and Ngugi JJA) observed:-“The sentence of death set aside and substituted it with imprisonment of 15 years.”
4. On an unspecified date, the applicants took out a Motion on Notice in which they sought that their sentence of 15 years be substituted with a lenient one of non-custodial for the same period.
5. I have considered the record and the applicants’ averments. All I can state is that, the Court of Appeal having rendered itself as it did in its decision of 17/3/2023 in Kisumu CRA No. 140 of 2017, this Court is bereft of any jurisdiction to second guess that Court’s finding.
6. Accordingly, this Court has no jurisdiction to entertain the Motion and hereby dismisses the same.It is so ordered.
DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF JUNE, 2025. A. MABEYA, FCI ArbJUDGE