Yapesa & 2 others v Republic (Criminal Petition 18, 24 & 35 of 2019 (Consolidated)) [2026] KEHC 10240 (KLR) (13 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL PETITION NO 18, 24 & 35 OF 2019** MATHEW KHAYADI YAPESA----------------------------------------------------------APPLICANT TITUS AMALEMBA----------------------------------------------------------------------APPLICANT MAURICE ODONGO(DECEASED)------------------------------------------------APPLICANT VERSUS REPUBLIC-------------------------------------------------------------------------------RESPONDENT **RULING** 1. Vide a notice of motion application dated 24th July 2025, the Applicants moved this court seeking the following orders; 2. *That this application be certified urgent and heard on a priority basis. (spent)* 3. *That the honourable court be pleased to review and/or vary the orders issued herein on 7th May 2020 sentencing the applicants to serve 40 years’ imprisonment and the same be substituted with a sentence meted in the ruling issued in petition No. 43 of 2020 of 20 years, taking into account the period that the applicants spent in custody pending the hearing and determination of the criminal case.* 4. The application is supported by the application of the two Mathews Khayadi and Titus Amalemba, who state that they had been charged with the offence of murder in Kakamega H.C criminal Case No. 10 of 2009 and were convicted and sentenced to serve 20 years each. They went to the court of appeal and their sentence was enhanced to life imprisonment. 5. They stated that their co-accused Micah Shammah was sent to a separate prison and they three of them, including the late Maurice Odongo, were sent to the same prison. They aver that Micah Shammah petitioned for resentencing vide Kakamega H.C petition No. 43 of 2020, whereas we, the other three, filed petition No. 18 of 2019,24 of 2019 and 35 of 2019, which were consolidated and heard separately from Micah Shammah's petition. 6. They claimed that they were first heard and sentenced to 40 years, and Micah Shammah was given 20 years; considering the time spent, he was released and is a free man. 7. They pray that the court considers their application and reviews their sentence to be consistent with the co-accused who has now been released from custody. 8. The Respondent filed grounds of opposition against the application, stating that the application is incompetent and an abuse of the court process, as sentencing is a matter of judicial discretion exercised on a case-by-case basis by taking into account the unique circumstances. 9. They aver that they failed to demonstrate that their circumstances are similar to those of the alleged co-accused who had benefitted from a different sentence. They further hold that they had failed to demonstrate that the court acted on the wrong principles, overlooked material factors or imposed a manifestly excessive sentence to warrant interference. 10. They opine that the orders issued in petition no. 43 of 2020 concerning the co-accused were made in separate proceedings based on different facts and circumstances and cannot be used to automatically revise the Applicant’s sentences. That further they had failed to prove that there was an error apparent on the face of the record and the allegations made are vague, unsubstantiated and do not meet the ground for review. 11. That the application offends the principle of finality of litigation and calls upon the court to sit on its own appeal and that the sentence of 40 years imprisonment was lawful and proportionate to the offence and as such the application should be dismissed with costs as the High Court is already *functus officio.* 12. This court directed that the application be canvassed by way of written submissions. However, at the time of writing this ruling, none of the parties’ submissions were on the court’s file or CTS. **ANALYSIS AND DETERMINATION** 1. This court has carefully considered the application dated 24th July 2025 as well as the respondent’s grounds of opposition. The key issues for determination are whether this court has the jurisdiction to review and further vary the orders for the sentence issued for 40 years. 2. The Applicants herein are seeking resentencing of the ruling delivered on 7th May 2020. According to the two applicants, Mathew Khayadi and Titus Amalemba, their co-accused, Micah Shammah, who had been imprisoned, had his sentence reviewed from 40 years to later 20 years, and that he was later released from prison after the court considered the time he had spent in custody. They filed the above application praying that the court review their sentence as it harmonized together with their co-accused. 3. On the other hand, the respondent avers that sentencing is at the court’s discretion, which the court had exercised depending on the various circumstances of each case, and further that the applicants had failed to demonstrate the error apparent on the face of the court and further that this court is *functus officio* having already rendered itself on the question of sentence. 4. Before considering the merits of the application, it is necessary to determine whether this court has the jurisdiction to revisit its resentencing decision rendered on 7th May 2020. 5. The jurisdiction of a court flows from the Constitution. A court cannot arrogate to itself jurisdiction that has not been conferred by law. The Supreme Court in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR** stated: *“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law.”* 1. In criminal matters, the High Court’s power of review is limited and must be exercised sparingly. This court became *functus officio* once a final order had been issued save for correction of minor accidental slips or in exceptional circumstances. 2. The doctrine of functus officio is intended to prevent a court from reopening a matter that it has already conclusively determined. In **Raila Odinga & Others v IEBC & Others [2013] eKLR*,*** the Supreme Court stated: ***“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality.”*** 1. In the present case, this court heard the Applicants' resentencing petitions, considered the mitigating factors, evaluated the circumstances of the offence and rendered a final determination by Hon. Justice W. M Musyoka on 7th May 2020. The court thereby exhausted its jurisdiction over the resentencing proceedings. 2. Considering the principles set out for reviewing a court order, the Applicants have not identified any new and important evidence that was unavailable at the time of the original ruling, nor have they demonstrated a mistake or error apparent on the face of the record. The mere fact that a co-accused received a different sentence in separate proceedings does not constitute a ground for review. 3. The court has also considered the provisions of Section 364(5) of the Criminal Procedure Code which provides: ***“When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceedings by way of revision shall be entertained at the insistence of the party who could have appealed.”*** 1. The above provision underscores the principle that where a party is dissatisfied with a sentence or order, the appropriate recourse is an appeal and not repeated applications inviting the same court to reconsider its final decision. 2. The Applicants have not demonstrated that the sentence issued to them of 40 years’ imprisonment was unlawful. Neither have they shown that the court acted without jurisdiction or imposed a sentence unknown to law. Their grievance is essentially that the court reached a different conclusion in respect of their co-accused. 3. I agree that parity is a desirable principle of sentencing co-accused persons; it is however still flexible, since it allows the courts to exercise their discretion. In sentencing, courts must consider the individual circumstances of each of the accused persons, their degree of participation, remorse, and other mitigating or aggravating factors as stated in the court of appeal case in **Bernard Kimani Gacheru v Republic [2002] eKLR,** where the court held that : ***“It is now settled law, following several authorities by this Court and by the High Court, that sentence is essentially an exercise of discretion by the trial court and for this Court to interfere it must be shown that in passing the sentence, the court took into account an irrelevant factor, or that a wrong principle was applied, or that the sentence imposed was manifestly excessive in the circumstances of the case.”*** 1. The Applicants have not demonstrated that the resentencing court took into account irrelevant considerations, failed to consider relevant matters or applied the wrong principles of law. The mere existence of a different sentence in ***Kakamega Petition No. 43 of 2020, Micah Shamala vs. Republic****,* does not establish an error warranting interference. 2. Furthermore, the orders issued in Petition No. 43 of 2020 were made in separate proceedings based on the record, mitigation and circumstances presented before the court in that matter. Those proceedings cannot automatically form a basis for reopening a final judgment rendered in a different petition. 3. The Applicants have equally failed to establish the existence of an error apparent on the face of the record. An error apparent on the face of the record must be self-evident and not one requiring elaborate argument to establish. What the Applicants seek is a reconsideration of the merits of the sentence imposed, which would effectively require this court to sit on appeal over its own decision. 4. Such a course is not permissible in law. Once the court rendered its resentencing decision on 7th May 2020, it became *functus officio* and could not revisit the merits of that determination except in circumstances expressly authorized by law. 5. From the above analysis, I find that the application before the court is an invitation to reopen a concluded resentencing process and to substitute the court's earlier exercise of discretion with a fresh one. This court lacks jurisdiction to undertake such an exercise. 6. Consequently, I find that the Notice of Motion dated 24th July 2025 is devoid of merit and is hereby dismissed. 7. Orders accordingly. 8. Right of Appeal 30 days. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF JULY,2026.** **S.N.MBUNGI** **JUDGE** **In the Presence of:-** CA: Zilda/Velma Applicant present online. Court Assistant to upload the ruling on the CTS.