https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12948

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **MISCELLANEOUS CRIMINAL APPLICATION NO. E091 OF 2025** **JOSEPH MIRORO GWARO………………………….…APPLICANT** **=VERSUS=** **REPUBLIC…………….…...……………………………RESPONDENT** **RULING** 1. The Applicant was an accused person in KISII CHIEF MAGISTRATE’S COURT CRIMINAL CASE NO. 977 OF 2017. Where he was convicted of offence of Robbery with Violence Contrary to Section 296 (2) of the Penal Code Cap 63 Laws of Kenya.; and sentenced to 20 years imprisonment.The sentence was imposed by Hon S. MAKILA (Senior Resident Magistrate) on 14th September 2018. 2. Dissatisfied with the said conviction and sentence, he appealed to this Court vide KISII HIGH COURT CRIMINAL APPEAL NO. 112 OF 2017. The Appeal which was heard by Gichohi J succeeded partially; as while the conviction was upheld, the Appeal on sentence succeeded as the said 20 years imprisonment was set aside and substituted with a sentence of 15 years imprisonment. 3. He later filed KISII HIGH COURT MISC CRIMINAL APPLICATION NO. E14 OF 2022 to this Court. Seeking a review of that sentence of 15 years. The Application was again heard by Gichohi J. Who in dismissing it, observed that the Application could only be escalated to the Court of Appeal. 4. He is by this Application seeking orders that the time spent in pre-conviction custody be taken into account in computing the period of the said sentence of 15 years of imprisonment. 5. The Application has been opposed by the state, on the ground that there is already a ruling on sentence review, and that which ruling was by Gichohi J, who is a Judge of concurrent jurisdiction. That even on Section 333 (2) of the Criminal Procedure Code (Cap 75 Laws of Kenya), he cannot come back to the High Court. That he should proceed to the Court of Appeal. 6. In rejoinder to this opposition, the Applicant answered that the Application determined by Gichohi J was one of general review of the said sentence, and not on Section 333 (2). ***Determination.*** 1. I have considered the Application together with the State’s opposition to it. I find that even though Gichohi J was not dealing with a Section 333 (2) application, she in her ruling directed the Applicant to pursue sentence review in the Court of Appeal. 2. In my view the said direction was so conscious, deliberate, categorical, and with finality and conclusiveness, as to leave no room for maneuver or re-litigation of the issue of sentence in this Court. 3. I hold that the issue of review of the said sentence having been litigated before Gichohi J, and with the conclusive direction she gave, the same issue cannot be relitigated before another High Court Judge. Whether in an Application for a blanket sentence review, or under Section 333 (2), or in whatever form. This is because, the principle of res judicata applies not only in civil cases, but also in criminal cases. 4. I cannot sit on appeal, over a decision of a Judge of concurrent jurisdiction. Neither can I sit on review of the same while he or she is still in service. No matter my good faith or enthusiasm for legal niceties. This Application could only be placed before her for review or for interpretation of the said direction, or reversal of the said ruling, as the case may be. 5. Where the decision is of finality in substance, an already decided application cannot be re-litigated; even through a different but similar application. That decision by Gichohi J can neither be varied nor disregarded by me, no matter my opinion of it. 6. For those reasons, this Application fails, and is hereby dismissed. Notwithstanding whether it is filed in blatant abuse of the court process, or in honest pursuit of what the Applicant perceives to be justice or his best interests. **DATED and DELIVERED at KISII on this 15th day of July 2026** **PROF (DR) NIXON SIFUNA** **JUDGE**