Agai v Republic (Miscellaneous Criminal Application E064 of 2026) [2026] KEHC 12440 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E064 OF 2026** **HEZBON OKOTH AGAI………………………………………..APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant’s notice of motion dated 5th May, 2026 seeks orders that this Honourable Court review and/or re-sentence him in respect of *Kisumu Chief Magistrate’s Court Criminal Case No. 227 of 2001.* He further seeks an order that the period he has already spent in custody be taken into account pursuant to *Section 333(2)* of the *Criminal Procedure Code.* The Applicant also asks the Court to consider his mitigation, rehabilitation and personal circumstances and impose a lesser and/or definite sentence. 2. The grounds upon which the application is premised are that the Applicant was convicted of the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code* in *Kisumu Chief Magistrate’s Court Criminal Case No. 227 of 2001* and sentenced to suffer death, which sentence was subsequently commuted to life imprisonment. 3. The Applicant states that he challenged both his conviction and sentence before the High Court in *Kisumu High Court Criminal Appeal No. 124 of 2000,* but the appeal was dismissed. He further appealed to the Court of Appeal in *Kisumu Criminal Appeal No. 209 of 2006,* which appeal was likewise dismissed. 4. The Applicant contends that subsequent developments in constitutional jurisprudence, particularly concerning mandatory sentences, entitle him to a re-hearing on sentence. In that regard, he asserts that the mandatory nature of the death sentence prescribed under *Section 296(2)* of the *Penal Code* has been declared unconstitutional to the extent that it deprives courts of discretion in sentencing. 5. The Applicant further states that he has been in custody for a prolonged period and has demonstrated rehabilitation, remorse and readiness to reintegrate into society. He also contends that he was not accorded an adequate opportunity to mitigate at the time of sentencing. 6. Finally, the Applicant maintains that this Court has jurisdiction to review and re-sentence him in the interests of justice. 7. The application is supported by the Applicant’s affidavit sworn on 5th April, 2026 in which he deposes that he was charged, convicted and sentenced in *Kisumu Chief Magistrate’s Court Criminal Case No. 227* *of 2001* for the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code.* 8. The Applicant deposes that he was sentenced to suffer death, which sentence was subsequently commuted to life imprisonment. He further states that he challenged both his conviction and sentence before the High Court in *Kisumu Criminal Appeal No. 124 of 2000,* but the appeal was dismissed. He subsequently appealed to the Court of Appeal in *Kisumu Criminal Appeal No. 209 of 2006,* which appeal was also dismissed. 9. The Applicant further deposes that he has been in custody for a considerable period, exceeding two decades, during which he has undergone rehabilitation, acquired various skills and maintained good conduct. He states that he is remorseful for the offence and has reformed. 10. On that basis, the Applicant urges the Court to consider his mitigation and review his sentence accordingly. 11. The application is resisted and to that end the Respondent filed a replying affidavit sworn on 16th June, 2026 by **Ms. Mercy Mutheu Muema,** Prosecution Counsel. 12. The Respondent admits that the Applicant was charged, tried and convicted before the Chief Magistrate’s Court at Kisumu in *Criminal Case No. 227 of 2000* for the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code* and was sentenced to death on 15th November, 2000, which sentence was subsequently commuted to life imprisonment. 13. It is further admitted that the Applicant’s first appeal to the High Court in *Criminal Appeal No. 124 of 2000* and his subsequent appeal to the Court of Appeal in *Criminal Appeal No. 209 of 2006* were both dismissed. The Respondent consequently contends that the Applicant’s conviction and sentence have been considered and upheld at every level of the appellate hierarchy available to him. 14. The Respondent does not oppose the Applicant’s prayer that the period spent in custody be taken into account pursuant to *Section 333(2)* of the *Criminal Procedure Code.* It nevertheless contends that the court record should be availed to enable the Court to verify whether the period in custody was already considered by the trial court and the appellate courts. 15. With regard to the prayer for review of the sentence, the Respondent contends that the present application is not the first occasion on which the Applicant has approached this Court seeking review of the same sentence on substantially similar grounds. It states that the Applicant previously filed *Petition No. 42 of 2019,* which was struck out on 18th February, 2020 as premature. The Applicant subsequently filed *Criminal Petition No. E034 of 2021,* which was dismissed by **Aburili, J.** on 26th October, 2022 for failure to comply with directions requiring him to avail copies of the judgement and proceedings from the courts that had previously handled his case. 16. The Respondent further states that the Applicant thereafter filed *Miscellaneous Criminal Application No. E076 of 2024,* seeking a review of the sentence imposed in *Criminal Case No. 227 of 2000* on grounds substantially similar to those advanced in the present application, including the period served in custody and the exhaustion of appellate remedies. It is contended that the said application was considered on its merits and dismissed by **Aburili, J.** on 21st May, 2024, the Court finding no legal basis for the review sought. 17. The Respondent therefore contends that the present application constitutes, in substance, a further attempt by the Applicant to re-litigate the same question that was previously placed before and determined by this Court on its merits, namely whether the length of time served and the exhaustion of appellate remedies entitle him to a review of his sentence. 18. It is asserted that the Applicant has neither pleaded nor demonstrated any new fact, change in circumstances or legal development distinguishing the present application from the application previously dismissed. 19. The Respondent further contends that the doctrine of *res judicata* and the related principle against abuse of the process of the Court apply to bar the present application. It is argued that a party whose application has been heard and determined on its merits by a court of competent jurisdiction ought not to be permitted to file successive applications raising the same grievance in the hope of obtaining a different outcome, as such conduct would undermine the finality of judicial decisions and amount to repetitive and vexatious litigation. 20. Without prejudice to the foregoing, the Respondent contends that the Applicant has not demonstrated any error of law, illegality or constitutional infirmity in the sentence as commuted to life imprisonment. 21. It is further asserted that mitigation, remorse, rehabilitation and the length of time served, although matters that may properly be considered at the appropriate stage of sentencing or upon a proper re-hearing, do not, in themselves, constitute grounds for revisiting a sentence that has already been conclusively considered and upheld. 22. In the premises, the Respondent contends that the present application is devoid of merit and ought to be dismissed. 23. The Applicant filed submissions in which he contends that the sentence imposed upon him ought to be reviewed and substituted with a lesser and definite sentence, having regard to the constitutional developments relating to mandatory sentences and the principles applicable to sentencing. 24. He submits that he was convicted of robbery with violence contrary to *Section 296(2)* of the *Penal Code* and sentenced to death, which sentence was subsequently commuted to life imprisonment. His appeals were unsuccessful, and he now contends that the mandatory nature of the sentence deprived the trial court of the discretion to consider his individual circumstances and mitigation. 25. The Applicant submits that he was arrested at the age of 26 years and has now spent approximately 26 years in custody, having attained the age of 52 years. He states that, at the time of his arrest, he was a family man with a wife and a daughter and that his prolonged incarceration disrupted his family life, aspirations and ability to provide for his family. He urges the Court to grant him an opportunity to reintegrate into society, contending that his family is ready to facilitate his rehabilitation and resettlement. 26. The Applicant further submits that his prolonged incarceration has been accompanied by deteriorating health, including longstanding anaemia and other related health challenges. He contends that these circumstances have caused him psychological, mental and social difficulties and ought to be taken into account in determining the appropriate sentence. 27. The Applicant submits that he was a first offender and that he has reformed, been rehabilitated and become remorseful for the offence. He attributes his involvement in criminal conduct, in part, to peer influence and drug use at a young age, which he states he has come to regret. 28. The Applicant further submits that his conduct, character and behaviour during his long period of incarceration have been exemplary. He contends that he has maintained good relations with fellow inmates and prison authorities and has been favourably regarded by the prison administration. He expresses a desire, upon release, to lead a law-abiding life, reconcile with those affected by his conduct and counsel young people against engaging in criminal activities. 29. On the applicable law, the Applicant submits that the mandatory nature of the sentence imposed upon him deprived the trial court of the opportunity to exercise discretion and to adequately consider his mitigation. He relies on constitutional and jurisprudential developments concerning mandatory and indeterminate sentences and contends that sentencing should serve not only the purposes of retribution and protection of society but also rehabilitation and proportionality. 30. The Applicant further submits that the principles emerging from the jurisprudence on mandatory sentences recognize the importance of an accused person being heard in mitigation and of the sentence imposed being proportionate to the individual circumstances of the offender and the offence. He contends that an indeterminate sentence may deny a court the opportunity to properly consider mitigation and may raise concerns under *Articles 27* and *28* of the *Constitution,* as well as the prohibition against inhuman and degrading treatment. 31. The Applicant also relies on the principles of sentencing and the provisions of *Section 333(2)* of the *Criminal Procedure Code,* urging the Court to take into account the period he has already spent in custody. 32. In the premises, he beseeches the Court to consider his age, health, family and social circumstances, status as a first offender, conduct and rehabilitation in custody, remorse, the period already served and the constitutional principles governing sentencing and to grant the prayers sought in the application. 33. The Respondent did not file any separate written submissions. It wholly relied on the averments, grounds and legal positions set out in the replying affidavit sworn by **Ms. Mercy Mutheu Muema.** 34. Having considered the notice of motion, the grounds in support thereof, the Applicant’s supporting affidavit, the Respondent’s replying affidavit and the submissions filed by the Applicant, the following issues arise for determination: 1. Whether the present application is barred by the doctrine of *res judicata* or otherwise constitutes an abuse of the process of the Court, having regard to the Applicant’s previous applications seeking review of the same sentence. * 1. Whether, notwithstanding the previous proceedings, the Applicant has demonstrated a legal or constitutional basis warranting the review and/or re-sentencing of the sentence imposed upon him, including consideration of his mitigation, rehabilitation, personal circumstances and the period spent in custody. 1. The first issue for me to address is whether the present application is barred by the doctrine of *res judicata* or otherwise constitutes an abuse of the process of the Court. 2. The starting point is that the Applicant has previously approached this Court seeking substantially the same relief. As set out in the Respondent’s replying affidavit, *Petition No. 42 of 2019* was struck out as premature, while *Criminal Petition No. E034 of 2021* was subsequently dismissed for non-compliance with directions. 3. More importantly, *Miscellaneous Criminal Application No. E076 of 2024* was heard and determined on its merits. The Applicant sought, in substance, a review of the same sentence on the basis of the length of time he had served and the exhaustion of his appellate remedies. That application was dismissed by **Aburili, J.** on 21st May, 2024. 4. The doctrine of *res judicata* is founded upon the principle that litigation must, at some point, come to an end. *Section 7* of the *Civil Procedure Act,* although contained in the civil procedural framework, embodies a principle of finality which is of broader application where a party seeks repeatedly to place the same dispute before a court of competent jurisdiction. 5. The essential question is whether the matter directly and substantially in issue in the subsequent proceedings was directly and substantially in issue in previous proceedings between the same parties and was heard and finally determined by a competent court. 6. This Court must underscore the public policy rationale underlying the doctrine. *Res judicata* is intended to bring litigation to an end and to prevent parties from repeatedly reopening matters that have already been determined. Litigation must have finality and that a party should not be permitted to litigate the same matter repeatedly merely because he is dissatisfied with the outcome. 7. The present application, however, requires a distinction to be drawn between the various grounds upon which the Applicant seeks relief. To the extent that the Applicant relies on the same facts and arguments previously advanced, namely that he has served a lengthy period in custody, has exhausted his appeals, has reformed and ought to be released or re-sentenced, the Respondent’s objection based on finality of litigation is compelling. 8. Those matters were previously placed before this Court and determined. The Applicant cannot, by changing the title of the application or rephrasing the relief sought, repeatedly invite the Court to reconsider the same question. 9. The Court must, however, also consider the Applicant’s reliance on constitutional developments concerning the mandatory nature of the death sentence and the alleged unconstitutionality of the sentence imposed upon him. 10. That issue brings into focus the jurisdiction of the Court and the proper procedure for invoking its constitutional jurisdiction. It is therefore necessary to consider the substantive jurisdictional question before conclusively determining the effect of the previous proceedings. 11. That then calls for me to address the issue whether the Applicant has demonstrated a legal or constitutional basis upon which this Court may review or re-sentence him. 12. The Applicant was convicted of robbery with violence contrary to *Section 296(2)* of the *Penal Code* and sentenced to death. His conviction and sentence were challenged before the High Court and subsequently before the Court of Appeal, and the sentence was ultimately affirmed. The sentence was later commuted to life imprisonment by executive clemency. The Applicant now seeks, through the present Miscellaneous Criminal Application, to have this Court review and/or re-sentence him. 13. In my view, the application encounters a fundamental jurisdictional obstacle. This Court is a court of concurrent jurisdiction with the High Court that previously heard the Applicant’s first appeal, but it is not an appellate court over the Court of Appeal. More importantly, this Court cannot exercise a power that would, in substance, amount to reviewing, varying, substituting or otherwise altering a sentence that has been affirmed by the Court of Appeal. 14. The jurisdiction of the High Court is constitutionally defined. *Article 165(3)* of the *Constitution* confers upon the High Court, among other jurisdiction, unlimited original jurisdiction in criminal and civil matters, appellate jurisdiction over decisions of a subordinate court and jurisdiction to determine questions concerning the interpretation of the Constitution. 15. However, the High Court does not, by virtue of that jurisdiction, become an appellate court over the Court of Appeal. The hierarchy of courts established under *Article 163* of the *Constitution* must be respected. 16. The same principle applies to the invocation of *Section 333(2)* of the *Criminal Procedure Code.* That provision requires a sentencing court to take into account the period which an accused person has spent in custody prior to being sentenced. It is an important statutory safeguard. However, it does not confer upon a court jurisdiction to reopen and vary a sentence which has already been affirmed by the Court of Appeal. 17. In ***Kenneth Kirimi v Republic [2021] KEHC 6435 (KLR),*** the High Court considered a similar attempt to invoke *Section 333(2)* of the *Criminal Procedure Code* in relation to a sentence that had been confirmed by the Court of Appeal. The Court held: ***“In my considered view, the High court has no jurisdiction to entertain any application under Section 333(2) where the Court of Appeal has confirmed sentence. This is because the result of invoking Section 333(2) would mean reducing the sentence with the period the accused spent in custody in the event that this application before the High Court is successful.”*** 1. The Court further held that the High Court lacked jurisdiction to entertain the application. 2. I respectfully agree with that reasoning. The practical effect of granting the Applicant’s prayer under *Section 333(2)* would be to reduce or otherwise alter the sentence affirmed by the Court of Appeal. That is a result this Court has no jurisdiction to achieve through a miscellaneous application. 3. The position is also consistent with the principle that jurisdiction cannot be conferred by consent, acquiescence, waiver or the failure of a party to raise an objection. As the Supreme Court stated in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR,*** a court’s jurisdiction flows from the *Constitution* or legislation, and a court cannot arrogate to itself jurisdiction exceeding that which has been conferred upon it. 4. The Applicant also relies heavily on the constitutional jurisprudence concerning mandatory sentences. His argument appears to proceed from the proposition that the decision in ***Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2017] KESC 2 (KLR),*** and subsequent jurisprudence concerning mandatory sentences, entitles this Court to reopen his sentence through the present application. 5. That proposition is not legally sustainable. In the directions issued in ***Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR),*** the Supreme Court expressly clarified the scope of its earlier decision. The Court stated: ***“We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.”*** 1. The Supreme Court further stated: ***“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.”*** 1. Of particular relevance to the Applicant’s case, the Supreme Court expressly addressed the mandatory death penalty for offences other than murder, including robbery with violence under *Section 296(2)* of the *Penal Code.* It directed: ***“To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached.”*** 1. The Supreme Court also made clear that the ***Muruatetu*** decision and its guidelines applied only to sentences for murder under *Sections 203* and *204* of the *Penal Code.* 2. The effect of those directions is clear. A person convicted of robbery with violence who seeks to challenge the constitutional validity of the mandatory death penalty cannot simply invoke ***Muruatetu*** in a miscellaneous criminal application seeking resentencing. The constitutional challenge must be properly instituted and presented as a constitutional challenge before the High Court and, if necessary, pursued through the appellate hierarchy. 3. The present Applicant has not filed a constitutional petition challenging the validity of the mandatory death sentence prescribed under *Section 296(2)* of the *Penal Code.* Instead, he has filed a Miscellaneous Criminal Application seeking, among other reliefs, review and resentencing. The Court has therefore not been properly moved to determine the constitutional question which the Applicant seeks, in substance, to place before it. 4. The distinction is important. A constitutional petition is not merely a different label for a miscellaneous application. It invokes a distinct constitutional jurisdiction and must identify the constitutional provisions allegedly violated, the manner of the alleged violation, and the reliefs sought. The Court must also be properly placed in a position to determine the constitutional question after hearing the parties in the manner required by law. 5. The Applicant’s reliance on the mandatory nature of the sentence therefore cannot, in the circumstances of this case, confer jurisdiction upon this Court to reopen a sentence affirmed by the Court of Appeal. The Applicant may, subject to the law governing constitutional litigation and the doctrine of finality of judicial decisions, pursue a properly framed constitutional challenge. But that is not the application presently before the Court. 6. The Applicant also relies on the argument that an indeterminate sentence of life imprisonment is unconstitutional. That argument is equally unavailable to him in the present application. The Supreme Court has now authoritatively determined the issue in ***Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR).*** 7. In that case, the Supreme Court set aside the decision of the Court of Appeal which had substituted a sentence of life imprisonment with a term of 40 years. The Supreme Court held that the Court of Appeal had erred in law by substituting the life imprisonment sentence and had thereby usurped the legislative power to define sentences. The Supreme Court concluded: ***“The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and affirmed by the first appellate court. Consequently, the life imprisonment sentence remains lawful and in line with section 8 of the Sexual Offences Act.”*** 1. The Court accordingly reinstated the life imprisonment sentence. 2. The significance of ***Republic v Manyeso*** is not confined to the particular offence before the Supreme Court. It reaffirms the constitutional and institutional principle that courts cannot, under the guise of sentencing discretion, legislate a different sentence from that prescribed by Parliament. 3. The Applicant’s submission that the Court should transform his life sentence into a definite term of years merely because he has served a lengthy period in custody, has reformed or is remorseful therefore cannot succeed in this miscellaneous application. Those are matters that may be relevant in a proper sentencing or resentencing jurisdiction. They do not, however, create jurisdiction where none exists. 4. I therefore find that this Court lacks jurisdiction to review, vary, substitute or otherwise adjust the sentence imposed upon the Applicant and affirmed by the Court of Appeal. It likewise lacks jurisdiction to use *Section 333(2)* of the *Criminal Procedure Code* as a mechanism for reducing or altering that sentence. The Applicant’s prayer for a lesser or definite sentence is consequently unavailable in these proceedings. 5. What orders should then issue on the Applicant’s motion? 6. The Applicant has undoubtedly been in custody for a very long period. His assertions that he has reformed, acquired skills, maintained good conduct and is remorseful are matters that, viewed purely from a humanitarian perspective, deserve acknowledgment. The Court also appreciates the rehabilitative objectives of sentencing. However, sympathy, compassion or the length of incarceration cannot confer jurisdiction upon a court. 7. The central difficulty with the present application is therefore not whether the Applicant has demonstrated rehabilitation or whether his mitigation is deserving of consideration. It is that the Court has not been properly moved to undertake the constitutional inquiry upon which his case substantially rests, and, in any event, this Court lacks jurisdiction to alter a sentence that has been affirmed by the Court of Appeal. 8. The Applicant’s reliance on *Section 333(2)* of the *Criminal Procedure Code* cannot cure that jurisdictional defect. As stated in ***Kenneth Kirimi v Republic*** (supra), the High Court cannot entertain an application under that provision where doing so would have the effect of reducing a sentence confirmed by the Court of Appeal. The same reasoning applies with even greater force where the Applicant seeks to convert an affirmed life sentence into a lesser and definite sentence. 9. In the circumstances, I find that the present application is incompetent. The previous determination of *Miscellaneous Criminal Application No. E076 of 2024* reinforces the conclusion that the Applicant cannot repeatedly reopen the same grievance through successive applications. 10. The present application consequently constitutes an impermissible attempt to re-litigate matters already determined, while the new constitutional argument has not been brought before the Court through the proper procedure. 11. For those reasons, the Applicant has not demonstrated a lawful basis upon which this Court may grant the orders sought. The notice of motion dated 5th May, 2026 is therefore dismissed. 12. This file is closed. DELIVERED (virtually) DATED and SIGNED this 28th day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**