Ahunza alias Shimatoli v Republic (Criminal Miscellaneous Application E028 of 2026) [2026] KEHC 11726 (KLR) (28 July 2026) (Ruling)

Ahunza alias Shimatoli v Republic (Criminal Miscellaneous Application E028 of 2026) [2026] KEHC 11726 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 11726 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E028 of 2026 RN Nyakundi, J July 28, 2026 IN THE MATTER OF ARTICLE 50(2)(q)(p),22(1)(3),25,27(1),19(3) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ARTICLE 26(2) OF THE PENAL CODE CAP 63 LAW OF KENYA AND IN THE MATTER OF SENTENCE REDUCTION AND SUBSTITUTION WITH A LESSER SEVERE SENTENCE Between Michael Ahunza alias Shimatoli Applicant and Republic Respondent Ruling 1.The historical litigation of this criminal case arises from the following facts upon the DPP exercising its constitutional right to indict the offender Michael Ahunza alias Shimotoli charged of the following counts: First count he was charged of robbery with violence contrary to Section295 as read with Section296(2) of the Penal Code. The particular of the offence were that on the 15th day of September 2018 at about 0300hrs at [Particulars Withheld] village within Vihiga County, jointly with others not before Court while being armed with dangerous weapons namely pangas and torches robbed MK of her suitcase, assorted clothes, original certificates, National Identity Card, three pairs of shoes, a techno tablet cream in colour and cash of Kshs all valued at 55,000/= and immediately before or immediately after the time of such robbery they threatened to use actual violence on the said MK. 2.In the alternative charge, the Applicant was charged of gang rape contrary to Section10 of the Sexual Offences Act No. 3 of 2006. The particular of the offence were that on the 15th day of September 2018 at about 0300hrs at [Particulars Withheld] village within Vihiga county, jointly with others not before Court intentionally and unlawfully caused his penis to penetrate the vagina of MK without her consent. 3.In the alternative charge, the Applicant was charged of committing an indecent act with an adult contrary to Section11 (A) of the Sexual Offences Act No. 3 of 2006. The particular of the offence were that on the 15th day of September 2018 at about 0300hrs at [Particulars Withheld] village within Vihiga county, touched the vagina of MK with his penis against her will. 4.Now before this Court is notice of motion dated 14th May 2026, the Applicant seeks the following orders:a.Spent.b.May this Court be pleased to waive any fee incurred in preparation of this application as I am a pauper and in prisonc.Or any other orders that this Hon. Court may deem just and fit 5.Grounds for application:a.That the Applicant was arrested, charged and convicted to serve a 25 year sentence for the offense of Robbery with violence contrary to Section 296(2) of the Penal Code.b.That the Applicant prays for sentence reduction, his appeal having been unsuccessful in the first appellate Court vide HCCRA No.34 of 2021 at Vihiga.c.That I do here again step before this seat of Justice with this application requesting the Honorable Court to consider and review my current sentence to a least severe oned.That I am now a law abiding citizen and very remorseful for the offence, since long incarceration will affect the whole of my 25 years and future dreams.e.That my rights to mitigate under the provisions of sections 216 and 329 of the CPC to the circumstances for the interest of justice applicable for sentence reduction. 6.In support of the application is the annexed affidavit of Michael Ahunza who deponed as follows:a.That I am a Kenyan male adult of sound mind, hence competent to swear this present affidavit.b.That the Applicant was arrested, charged and convicted to serve a 25 year sentence for the offense of Robbery with violence contrary to Section296(2) of the Penal Codec.That the Applicant was arrested, charged and convicted to serve Death sentence for the offense of Robbery with violence contrary to Section296(2) of the Penal Code.d.That I did not appeal to the Court of Appeal at Kisumu for lack of points of law and instead opted to file a Misc. application to this Hon. High Court seeking for sentence reduction as it has jurisdiction powers to do the same.e.That I am now a law abiding citizen and very remorseful for the offence, since long incarceration will affect the whole of my 25 years and future dreams.f.That my rights to mitigate under the provisions of sections 216 and 329 of the CPC to the circumstances for the interest of justice applicable for sentence reduction.g.That I have undergone rehabilitative and reformative programs in this facility that has earned me certificates; Nuru Lutheran Media Ministries (Bible Correspondence Courses), Islamic Education Course Level 2 (two) and Ummah Foundation (rehabilitation Program) Decision 7.Although the Applicant has already been sentenced, the consideration for post-conviction review of sentence must be looked at from the lens of the Bernard Gacheru v Republic [2002] eKLR“It is now settled law, following several authorities by this Court and by the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” 8.The Court should also not lose sight to the principles underpinning the sentencing process which include but not limited to the following: Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender. Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances. Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines. Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process. Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole. More guidance is given on this in paragraphs 2.3.21 to 2.3.30. Respect for Human Rights and Fundamental Freedoms: The sentences imposed must promote, and not undermine, human rights and fundamental freedoms. Whilst upholding the dignity of both the offender (and where relevant, the victim), the sentencing regime should contribute to the broader enjoyment of human rights and fundamental freedoms in Kenya. Sentencing impacts on crime control and has a direct correlation to fostering an environment in which human rights and fundamental freedoms are enjoyed. Enhancing Compliance with Domestic Laws and Recognized International and Regional Standards on Sentencing: Domestic law sets out the sentences that can be imposed for each offence. In addition, those international legal instruments, which have the force of law under Article 2 (6) of the Constitution of Kenya, should be applied. There are also international and regional standards and principles on sentencing that, even though not binding, provide important guidance on sentencing. Relevant international and regional legal instruments and guidelines include but are not limited to. 9.When the Court is evaluating an appeal or review may it be in conviction and sentence the following comparative case law though based on South African jurisprudence it resonates well with our domestic legal policy as exemplified by the following decisions: S v Malgas 2001 (1) SACR 469 (SCA): The Supreme Court of Appeal (SCA) set the definitive precedent regarding prescribed minimum sentences. It established that a High Court or Appeal Court can only deviate from a mandated sentence if "substantial and compelling circumstances" exist. S v Matyityi 2011 (1) SACR 40 (SCA): The Court reaffirmed that such "exceptional circumstances" must be truly convincing, out of the ordinary, and beyond standard, everyday mitigating factors. S v Jonas 1998 (2) SACR 677 (SE): The Courts clarified in parallel contexts that merely personal hardships (like being a first-time offender or having dependents do not, on their own, constitute exceptional circumstances. 10.It is important that punishment should be inflicted upon people who commit crimes of this sort. It is important from this young man’s point of view that he should expiate his offence. It is important to remind others of the dangers of carrying knives, let alone the danger of taking them from their sheaths and using them. It is important that the public’s requirement that offenders should be made to suffer for their misdeeds should be satisfied. If that requirement is not satisfied, then people are apt to take matters into their own hands. 11.The primary purpose of sentencing is deterrence and retribution. The maximum sentence for an offence is reserved for worst cases. Where the offence is not so grave as to warrant the imposition of the maximum penalty, a Court is bound to consider where the facts of the particular offence and offender lie on the spectrum that extends from the least serious instance to the worst. The Queen v Kilic at 19; Elias v the Queen (2013) 248 CLR 483. 12.It is on record that the Applicant has moved the Court in the matter of in the Matter of Article 50(2)(Q)(P), 22(1)(3), 25, 27(1), 19(3) of the Constitution of Kenya 2010 and in the matter of Section 26(2) of the Penal Code Cap 63 Law of Kenya and in the matter of Sentence Reduction and Substitution with a Lesser Severe Sentence. The constitution dictates under this provisions provided as follows:19(3)The rights and fundamental freedoms in the Bill of Rights—(a)belong to each individual and are not granted by the State;(b)do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and(c)are subject only to the limitations contemplated in this Constitution.22.(1)Every person has the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.(3)The Chief Justice shall make rules providing for the Court proceedings referred to in this Article, which shall satisfy the criteria that—(a)the rights of standing provided for in clause (2) are fully facilitated;(b)formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the Court shall, if necessary, entertain proceedings on the basis of informal documentation;(c)no fee may be charged for commencing the proceedings;(d)the Court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and(e)an organisation or individual with particular expertise may, with the leave of the Court, appear as a friend of the Court.27.(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.50.(2)Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and(q)if convicted, to appeal to, or apply for review by, a higher Court as prescribed by law. 13.As with ordinary language, the meaning of a constitutional provision depends on the context in which it is used. Much of constitutional interpretation is therefore about establishing the context or, perhaps, painting the picture within which a particular constitutional provision must be viewed. Sometimes the context is obvious and the meaning of the provision is unlikely to give rise to controversy. Other provisions are however quite likely to be the subject of argument about their proper meaning. 14.The constitutional Court in South Africa on S v Zuma 1995 (2) SA 642 (CC) warned and against and estimating the importance of the text in et constitution. Thus:While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single 'objective meaning'. Nor is it easy to avoid the influence of one's personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination. . . . I would say that a constitution 'embodying fundamental principles should as far as its language permits be given a broad construction. 15.In my appreciation of the motion this provision on the Bill of Rights are remotely applicable when it comes to reduction of sentence for there is no evidence that the Applicant has been discriminated as against the same class of people who also went through the legal process with regard to their criminal trial and they were finally found guilty, convicted and appropriately individualized sentence imposed by the Trial Court. 16.The predominant issue being agitated for by the Applicant is on reduction of sentence in which he makes attempt to persuade this Court to exercise discretion to review and have it substituted with a lesser term of imprisonment. It is trite as properly set out in the case of S vs Malgas 2001 (1) SACR 469 (SCA) where the Court held as follows:“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial Court, approach the question of sentence as if it were the trial Court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial Court...However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial Court. It may do so when the disparity between the sentence of the trial Court and the sentence which the appellate Court would have imposed had it been the trial Court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate" 17.This is the law in Kenya as already cited in the Benard Gacheru Case(supra). The import in which this Court can review a sentence would be to draw from the foundation principle in the province of civil law which deals with review jurisdiction anchored on the following principles: Self-Evident Nature: The mistake must stare you in the face. If it takes a long, complicated argument or a deep search of rules and reasoning to prove it, it is an appeal issue, not a review error. No Re-appraisal: A review cannot be used to re-hear the case, re-weigh evidence, or fix a wrong choice of law. Not an Appeal in Disguise: Choosing a different legal view or arguing that another judge might have decided differently does not mean there is an error on the record 18.The importance cases in this respect as herein below demonstrated have set the record straight on what is the proper interpretation of Section 80 of the CPA as read with Section 362 of the CPC and further Order 45 Rule 1 of the CPR: National Bank of Kenya Ltd. v. Ndungu Njau (1997) eKLR: Set the foundational rule that an error must be patent, self-evident, and not require elaborate arguments or re-interpretation of a statute. Kamlesh Verma v. Mayawati (2013) All SCR 3411: The Supreme Court of India clarified that a review is strictly confined to errors apparent on the face of the record and cannot morph into a disguised appeal. David & 2 others v. Bakaya (2025): Reaffirmed that a Court cannot review its own judgment just because a party claims the judge failed to properly evaluate evidence already filed on the Court record. Fredrick Otieno Outa v. Jared Odoyo Okello & 3 others (2017) KESC: The Supreme Court of Kenya explained the limits of the "Slip Rule" and review, noting that corrections must be obvious and cannot change the substantive core or intent of a judgment. 19.It could have been possible to adjudicate over this issue on sentence the Applicant had brought himself within the provisions of Article 50(6)(a)(b) of the constitution which states as follows:(6)A person who is convicted of a criminal offence may petition the High Court for a new trial if—(a)the person’s appeal, if any, has been dismissed by the highest Court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and(b)new and compelling evidence has become available. 20.I have reviewed the application and the annexed affidavit evidence it does not meet the threshold of a new trial on sentence. Therefore, in a nutshell I hold that the principle of res judicata and issue estoppel applies also to criminal proceedings barring fresh re-litigation by either the prosecution or the defence on already settled facts. This general principle barring re-litigation of a finalized issue before a Court of law applies also to criminal cases. It should be borne in mind and reaffirm as a good principle of law that criminal proceedings cannot be maintained on facts already raised and determined in prior proceedings. This is exactly what the Applicant is inviting this Court to do, to exercise review jurisdiction on sentence of a concurrent Court which would be in violation of the Constitution and the Statute which donates personam and res jurisdiction to Courts. In sum this application fails on all fronts of the law be it res judicata, cause of action estoppel or want of jurisdiction. It is therefore good for dismissal for want of merit. DATED, SIGNED AND DELIVERED THIS 28TH DAY OF JULY 2026.…………………………………R. NYAKUNDIJUDGE