https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12487

Oremo v Republic (Miscellaneous Criminal Application E024 of 2026) [2026] KEHC 12487 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12487 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Criminal Application E024 of 2026 JM Omido, J July 31, 2026 Between John Omondi Oremo Applicant and Republic Respondent Ruling 1.The Applicant herein, vide the notice of motion dated 27th January, 2026 seeks an order for the review of his sentence so that the period of eighteen (18) years already spent in custody may be taken into account and deemed sufficient punishment, with a view to securing his release in the interests of justice and fairness. 2.The Applicant states in the grounds upon which he premises his application that he was convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Kisumu Chief Magistrate’s Criminal Case No. 119 of 2009 and sentenced to death. 3.He contends that his appeal before the High Court in Kisumu Criminal Appeal No. 150 of 2011 was dismissed and that a further appeal to the Court of Appeal in Criminal Appeal No. 95 of 2018 was likewise dismissed on 8th November, 2024, thereby exhausting all available avenues of appeal. 4.The Applicant avers that his death sentence was subsequently commuted to life imprisonment by the President and that he now approaches this court under Articles 50(2)(p) and (q), 165(3)(a), 27, 28, 25(a) and 29 of the Constitution, Article 6(4) of the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (UDHR) and the United Nations Economic and Social Council Safeguards of 25th May 1984, seeking a review of his sentence. 5.He argues that the commuted life sentence is unconstitutional as it is indeterminate, was imposed without due consideration of his mitigation, affords no realistic possibility of review and consequently violates his rights to a fair trial, equality, human dignity and freedom from cruel, inhuman and degrading punishment. 6.The Applicant further contends that the impugned sentence is discriminatory because other persons convicted under Section 296(2) of the Penal Code have received determinate custodial sentences, whereas he continues to serve an indeterminate life sentence. 7.Finally, the Applicant asserts that he is a remorseful first offender who has undergone rehabilitation during his incarceration and that if his sentence is not reviewed, he will be subjected to an excessive, harsh, cruel and inhumane punishment disproportionate to the circumstances of his case. 8.The application is supported by the Applicant’s affidavit sworn on 27th January, 2026 in which he deposes that he was convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Kisumu Chief Magistrate’s Criminal Case No. 119 of 2009 and sentenced to death. He further deposes that both his appeal before the High Court in Criminal Appeal No. 150 of 2011 and his subsequent appeal before the Court of Appeal in Criminal Appeal No. 95 of 2018 were dismissed. 9.He avers that following the dismissal of his appeals, his death sentence was commuted to life imprisonment by the President and that he has now exhausted all the available avenues of appeal. 10.The Applicant deposes that he has invoked this court's jurisdiction under Articles 50(2)(p) and (q) and 165(3)(a) of the Constitution, as well as various international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (UDHR) and the United Nations Economic and Social Council Safeguards in support of his application for review of sentence. 11.The application is opposed vide the replying affidavit of Ms. Mercy Mutheu Muema, Prosecution Counsel, sworn on 6th June, 2026 in which the said deponent contends that the Applicant’s first appeal in Kisumu High Court Criminal Appeal No. 150 of 2011 was dismissed after the High Court re-evaluated the evidence and upheld both the conviction and sentence. 12.She further deposes that the Applicant’s second appeal in Kisumu Criminal Appeal No. 95 of 2018 was similarly dismissed by the Court of Appeal, which upheld the conviction and the sentence after considering the evidence, the applicable law, and the Applicant’s challenge to the constitutionality of the mandatory death sentence in light of Muruatetu II. She adds that the Applicant’s sentence was subsequently commuted to life imprisonment by the President. 13.The deponent contends that the present application is incompetent for want of jurisdiction, as the Applicant’s conviction and sentence were conclusively determined by the Court of Appeal. She avers that this court lacks jurisdiction to review, vary or set aside a sentence that has already been affirmed by a superior court and cannot sit on appeal over or review a decision of the Court of Appeal. 14.She further contends that the issues raised in the application, including the constitutionality of the sentence and the request for review based on the period already served, were considered and determined by the Court of Appeal and are therefore res judicata. Consequently, she urges the court to find that the application is devoid of merit and to strike it out or dismiss it. 15.The Applicant filed submissions in which he contends that he has now served approximately eighteen (18) years in custody since his arrest and that the period already served has achieved the objectives of punishment. 16.He contends that he has been rehabilitated, reformed, socially readapted and is genuinely remorseful for his actions. He further states that he has undertaken rehabilitation programmes while in prison, performed exceptionally well and has obtained certificates and testimonials demonstrating his reform. 17.He argues that he was the sole breadwinner of his young family before his incarceration and that the circumstances which informed the imposition of the death sentence have substantially changed with the passage of time. 18.He submits that continued incarceration under a commuted life sentence has become disproportionate and that, as time passes, the punishment becomes increasingly severe, thereby warranting a review of his sentence. 19.On jurisdiction, the Applicant contends that this court has constitutional jurisdiction under Articles 23 and 165 of the Constitution to entertain his application notwithstanding that his conviction and sentence were affirmed on appeal. 20.He urges that the High Court retains original jurisdiction to determine constitutional questions and to review sentences where constitutional rights are implicated. 21.The Applicant further submits that the High Court has previously exercised jurisdiction to review or revise sentences in appropriate cases. He submits that convicted persons have the constitutional right to benefit from the least severe punishment, to have their mitigation considered and, where appropriate, to seek resentencing in accordance with Articles 25(c), 27(1) and 50(2)(p) of the Constitution. 22.Having considered the application and the material before me, the sole issue falling for determination is whether this court has jurisdiction to entertain the Applicant’s notice of motion dated 27th January, 2026 and grant the orders sought for the review of his sentence. 23.The record shows that the Applicant was convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code, sentenced to death, unsuccessfully appealed to the High Court and thereafter to the Court of Appeal, both of which affirmed his conviction and sentence. 24.The Court of Appeal expressly considered and rejected his challenge to the sentence. The death sentence was thereafter commuted to life imprisonment by the President. 25.In those circumstances, the Applicant’s sentence has already been conclusively considered through the appellate hierarchy. This court, being bound by the decisions of the Court of Appeal, lacks jurisdiction to reopen, vary or review a sentence that has been affirmed by that court. To do so would amount to the High Court sitting on appeal over, or reviewing, the decision of a superior court, a jurisdiction it does not possess. 26.The Applicant has sought to invoke Articles 23 and 165 of the Constitution and has mounted several constitutional arguments relating to human dignity, equality, fair trial and the prohibition against cruel, inhuman and degrading punishment. However, even assuming that such constitutional questions are arguable, the present proceedings have been instituted by way of a miscellaneous criminal application seeking sentence review. That is not the proper procedural vehicle for the determination of constitutional grievances of the nature advanced by the Applicant. 27.The Supreme Court in Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae) [2021] KESC 31 (KLR) (Muruatetu II) made it clear that constitutional challenges to the validity of statutory sentencing provisions or alleged violations of constitutional rights are to be pursued through properly instituted constitutional petitions. 28.A miscellaneous application for review of sentence cannot be employed as a substitute for a constitutional petition or as a means of reopening matters that have already been conclusively determined through the appellate process. 29.Consequently, this court lacks jurisdiction to entertain the application in its present form. 30.Accordingly, I find that the notice of motion dated 27th January, 2026 is incompetent for want of jurisdiction. The same is hereby dismissed. 31.This file is hereby closed. DELIVERED (VIRTUALLY) DATED AND SIGNED THIS 31ST DAY OF JULY, 2026.JOE M. OMIDOJUDGEApplicant: Present, Virtually.Respondent: Ms. Muema.Court Assistants: Mr. Ngoge & Mr. Juma.