https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6792

Mudola & 2 others v Republic (Criminal Miscellaneous Application E062, E072 & E973 of 2025 (Consolidated)) [2026] KEHC 6792 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 6792 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E062, E072 & E973 of 2025 (Consolidated) RN Nyakundi, J May 19, 2026 Between Tyson Mudola 1st Applicant Patrick Sahani 2nd Applicant Alex Kuya 3rd Applicant and Republic Respondent Ruling 1.Before this Court are three notices of motion individually filed by the Applicants in Court on 6th November 2025, 18th & 30th of December 2025 notwithstanding that they originate from the consolidated judgment of the Court in Criminal Appeal Case No. 942 of 2016 whose judgment is in the repository of Kenya Law namely Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR). Apparently the three notices of motion are expressed to be brought under Section 362 and 364 of the Criminal Procedure Code, Articles 22, 23, 25, 27, 28, 29, 50, 159(2)(d), 165(3)(a) and 259 of the Constitution of Kenya 2010, and all enabling provisions of the law seeking the following Orders:a.That this honourable Court be pleased to review, vary and/or reduce the thirty (30) year sentence imposed upon the Applicants in Tyson Mudola, & Others v Republic [2019] KEHC 8352 (KLR) to a lesser and more lenient term of imprisonment.b.That the period already served by the Applicants while in custody be taken into account pursuant to Section 333(2) of the Criminal Procedure Code.c.That the Honourable Court do make such other or further orders as may be just and expedient in the circumstances. 2.Which application is founded on the following grounds;a.That the Applicants were convicted and sentenced to death by the Senior Resident Magistrate's Court at Hamisi in Criminal Case No. 942 of 2016, which sentence was substituted with thirty (30) years' imprisonment by the High Court at Kakamega in Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR).b.That the Applicants withdrew their appeal to the Court of Appeal at Kisumu upon the Supreme Court's clarification that the Court of Appeal lacks jurisdiction to review or alter sentences, as sentencing is a matter of fact and not law.c.That this honourable Court is therefore properly seized of jurisdiction under Articles165(3)(a) and 50(6) of the Constitution, and Sections 362 and 364 of the Criminal Procedure Code, to review the propriety and fairness of the sentence imposed.d.That the Applicants have undergone extensive rehabilitation while in custody, as evidenced by theological and correctional certificates earned during their imprisonment, demonstrating genuine reformation and reintegration potential.e.That their current Earliest Possible Date of Discharge (E.P.D.) is 21st March 2038, a period of thirteen (13) years away, which is manifestly long and disproportionate when considered alongside their demonstrated rehabilitation.f.That the sentence of thirty (30) years is manifestly excessive and contrary to the evolving jurisprudence on proportionality, human dignity and the rehabilitative purpose of sentencing.g.That the Court in Ali Abdalla Mwanza v Republic [2018] eKLR recognized that, where a term sentence exceeds the national life expectancy (approximately 67 years), it is manifestly excessive, and reduction is warranted to ensure that punishment does not amount to a life sentence by default.h.That in Vinter and Others v United Kingdom (Applications Nos. 66069/09, 130/10 and 3896/10), the European Court of Human Rights emphasized that continued detention must remain justifiable throughout the sentence and should be subject to review in light of changing circumstances and the rehabilitative progress of the prisoner.i.That the Applicants continued incarceration without the possibility of early review or re-sentencing offends the principles of human dignity, fair trial, proportionality, and progressive realization of human rights under the Constitution and international human rights instruments to which Kenya is a party.j.That it is in the interest of justice, equity, and humanity that this honourable Court reviews and reduces the sentence to a term that reflects rehabilitation, deterrence, and reformation rather than retribution. 3.In support of the application are the affidavits sworn individually by the Applicants but with identical averments, thus:a.That we are` the Applicants herein, convicted and sentenced in Hamisi Senior Resident Magistrate's Court Criminal Case No. 942 of 2016 for the offence of robbery with violence and related counts, hence competent to swear their affidavit.b.That upon appeal, the High Court at Kakamega in Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR) upheld my conviction but substituted the death sentence with a term of thirty (30) years imprisonment.c.That being dissatisfied with the length of the sentence, we initially lodged an appeal to the Court of Appeal at Kisumu but later withdrew it after recent jurisprudence clarified that the Court of Appeal lacks jurisdiction to interfere with sentences since such matters are issues of fact, not law.d.That we therefore bring this application before this Honourable Court at Vihiga under its review jurisdiction conferred by Articles 50(2)(q) and 165(3)(a) of the Constitution.e.That we have now served a substantial portion of the sentence and our Earliest Possible Date of Discharge (E.P.D.) is 21st March 2038, which is thirteen (13) years away, a period that remains disproportionately long in view of my demonstrated rehabilitation and positive conduct in custody.f.That during our incarceration, we have transformed through rehabilitation and education and have attained theological and moral development certificates, copies of which shall be adduced at the hearing herein.g.That we have actively participated in prison ministry, mentorship and reformation programs aimed at moral rebuilding, conflict resolution and peaceful coexistence, and we now live a life founded on humility, discipline and repentance.h.That we humbly urge this honourable Court to consider the decision in Ali Abdalla Mwanza v Republic [2018] eKLR, where the Court held that long-term sentences exceeding the national life expectancy of about 67 years are manifestly excessive and ought to be reduced to reflect the rehabilitative purpose of punishment.i.That similarly, in Vinter and Others v the United Kingdom (Applications Nos. 66069/09,130/10 and 3896/10), the European Court of Human Rights emphasized that the justification for continued detention must be periodically reviewable in light of a prisoner's rehabilitation and changing circumstances.j.That this application is therefore made not to contest conviction, but to invite this honourable Court to exercise its discretionary power of mercy, fairness and proportionality by reviewing the 30-year sentence to a lesser term consistent with the principles of justice and human dignity.k.That the continued incarceration for the remaining thirteen (13) years serves no meaningful rehabilitative purpose and instead imposes undue hardship, contrary to Articles 27, 28, 29(f) and 50(2)(p) of the Constitution, which guarantee equality, human dignity, freedom from cruel treatment, and the right to a fair trial including benefit from the least severe punishment.l.That this honourable Court has both constitutional and inherent jurisdictions to review sentences that appear harsh, excessive or inconsistent with the principles of proportionality, rehabilitation and social reintegration.m.That we make this application in good faith, without malice or frivolity, and we beseech the Court to accord me a second chance to reintegrate into society as a reformed and responsible citizen. 4.The Applicants have moved the Court to review their sentence based on Section 333(2) of the Criminal Procedure Code. In their affidavit they contend that the original sentence of death for the offence of robbery with violence contrary to Section 296(2) of the Criminal Procedure Code was reviewed on appeal and substitution with the custodial sentence of 30 years’ imprisonment. In their latest application they further argue that they had preferred an appeal to the Court of Appeal sitting at Kisumu but later withdrew it as evidenced by the order of the Court of Appeal dated 27th February 2024. It is their contention that the Court exercises discretion to reconsider the sentence under Section 333(2) of the CPC so that they can benefit from the letter and spirit of the law. Decision 5.In my view the Applicants had an opportunity to litigate that issue before the High Court which considered the death sentence and same was reviewed and substituted with a custodial sentence of 30 years’ imprisonment. The evidence in the affidavit seem to concentrate more on the law and other international instruments with regard to the issue of the sentence being punitive, excessive and not in tandem with the constitutional imperative. That is in so far as the affidavit goes without annexing evidence that the Applicants had been in custody for thirteen years. 6.It is the law in Kenya both under civil and criminal law that whoever alleges existence or non-existence of a fact in a particular dispute as provided for under Section 107(1), 108, 109 and 112 of the Evidence Act must discharge that burden of proof for him or her to secure judgment in their or her favor from a Court of law. In furtherance to their fact, the issues of them having been in remand custody remain to be within the knowledge and personal circumstances of the Applicants. This is an old matter. It was decided by Kakamega High Court by Musyoka J and yet the Applicants decides to lodge a fresh application for review of that very judgment of an Appeal’s Court which considered the appeal among other issues on conviction and sentence and now brings a fresh application in a completely different forum which has no advantage of the record. The proper recourse would have been to institute review before that forum in which the session Judge was Musyoka J. He cannot be seen to re-litigate the issue on sentence before a Court of concurrent jurisdiction. The session Judge is still in service within the Republic of Kenya. There are no compelling and exceptional circumstances which have been shown or demonstrated before this Court why their application was never filed before Musyoka J and the matter handled virtually on the same issues now being canvassed before me within the scope of the law as provided for under Section 362 and 364 of the Criminal Procedure Code. 7.The Applicants were bound to prove the existence of any fact or facts that they spent thirteen (13) years in pretrial detention in absence of any record before Vihiga High Court. Although it is trite that in criminal cases the State has both the constitutional and statutory duty to prove the offence or indictment against a suspect or an accused person beyond reasonable doubt, but in this case offenders, convicts formerly accused persons who desire this Court to give them judgment under Section 333(2) of the CPC on computation of credit. It cannot be the duty of the review Court to undertake an excavation of the record to come up with the arithmetic on pretrial detention period so that the law can come to the aid of the Applicants. The most restated statement in civil law to the effect that the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence was proved on either side lies with that person and in our case the Applicants. 8.In the instant case going through the entire gamut of the evidence adduced by the Applicants there is nothing to show that there is any material evidence to support the 13-year detention period. 9.This is about whether this Court can exercise jurisdiction to review the judgment of Musyoka J. Why were the Applicants not able to approach that very same Court immediately soon thereafter it made its pronouncement and decision on conviction and sentence for the offence of robbery with violence contrary to Section 296(2) of the Penal Code? This is not about offending the principles of human dignity, fair trial or proportionality under the Constitution 2010 and International Human Rights instruments to which Kenya is a party as envisaged under Article 2(5) & (6) of the Constitution. The legal context and text being referred to by the Applicants must be applied out of context to extend compassion and mercy in so far as the sentence of 30 years imposed by the Appeal’s Court. Undoubtedly, the record is very clear that the Applicants had preferred to approach the Court of Appeal having been aggrieved with the sentence of the High Court but for reasons which are not very clear, they went ahead to withdraw the appeal rendering the judgment of the High Court to remain as affirmed as legal a decision on matters impacting the criminal proceedings as initiated by the Office Director of Public Prosecution on indictment on the charge of robbery with violence contrary to Section 296(2) of the Penal Code within the powers donated by the Constitution under Article 157(6) & (7) of the Constitution of Kenya. 10.This Court walking down memory lane recalls that this issue of resentencing of already convicted persons within our justice system was birthed by the Apex Court decision of Francis K. Muruatetu vs Republic [2017] eKLR which specifically focused on the mandatory death sentence for the offence of murder under Section 203 as read with Section 204 of the Penal Code. The findings of the Apex Court although was within the realm and ambit of murder sentencing prescription by Parliament under Section 204 of the Penal Code on mandatory death sentence, its application opened up floodgates of litigation to other penal laws and sentences imposed by various Courts as against other persons convicted of such offences. If I apply the classic formulation in Article 353 of the French Court of Criminal Procedure to the facts of their case on interpretation of whether the Applicants have met the threshold of the law, the answer will be in the negative and I quote;“The law does not ask Judges for an explanation of the means by which they are convinced, it does not set any particular rules by which they must assess the fullness and adequacy of the evidence; it stipulates that they must search their conscience in good faith and silently and thoughtfully ask themselves what impression the evidence given against the accused and the defence's arguments have made upon them. The law asks them only one question which sums up all of their duties 'Are you personally convinced'?” 11.Going by this legal text am yet to be convinced that the Applicants have a pre-detention of thirteen (13) years which they have been unable to bring forth in the entirety of the proceedings including the withdrawn appeal before the Kenya Court of Appeal. What this case boils to is that the current forum lacks the jurisdiction and authority to hear the matter on review or as they commonly call it resentencing. Their threshold and hurdle has not been surmounted by the Applicants for a remedy on credit period under Section 333(2) of the Criminal Procedure Code to be passed as a benefit within the prism of the law. In making this finding I am guided by the principles in the following case law:The Lillian S. Principle (Owners of the Motor vessel “Lilian S” v Caltex Oil (Kenya) Ltd 1989 KLR, Source of Power (Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others [2012] eKLR) & Specialist Courts (Suleiman Mwamlole Warrakah & 2 Others v. Mwamlole Tchappu Mbwana & 4 Others [2018] eKLR: 12.From the above principles this application can be described as moot for want of jurisdiction by order and judgment passed by Musyoka J during the hearing and determination of the appeal in Criminal Appeal at Kakamega High Court referenced as Tyson Mudola, Clinton Ngonda, Patrick Sahani & Alex Kuya v Republic [2019] KEHC 8352 (KLR). As if that is not enough, the doctrine of res judicata as borrowed from Section 7 of the Civil Procedure Act runs foul on the same issues on sentencing already dealt with by Kakamega High Court. 13.As explained by Professors Andrew von Hirsch and Andrew Ashworth, the principle of proportionality is derived from desert theory that envisions punishment as a “condemnatory institution,” punishing people as “as agents, capable of moral deliberation.” As argued by the authors, “[t]he entire structure of modern desert theory is one that views offenders and potential offenders as persons, whose rights are to be taken seriously.”41 Individuals are thus punished not just for committing an abstract wrong but also for what they specifically did wrong. Therefore, in order to impose fair and individualized punishment, two basic steps need to be followed: First, society must generally decide how severely to punish a type of wrongdoing. In other words, punishment must be anchored to the seriousness of a type of crime. A “mandatory minimum” sentence, for example, is Parliament’s expression of what is a fair punishment for a type of crime. Starting points and ranges are also expressions of fair punishments for categories of crime. Through these mechanisms, it is decided generally what type of a punishment or result fits a type of crime.42 Second, just punishment must be individualized to ensure that people are punished relative to others. Justice demands that those who are more blameworthy receive a harsher sanction. On the other hand, if the moral blameworthiness and the degree of responsibility of two individuals are identical, their punishment should be roughly identical. In order to individualize punishment in this manner, a sentencing judge must follow a process through which he or she identifies the particular blameworthiness and degree of responsibility of the individual(s) being sentenced. 14.This application does not even qualify to be litigated upon within the letter and spirit of Article 50(6) (a) & (b) of the Constitution. The Applicants in every aspect of the application build their legal house on sand and the rock of the law cannot come to their aid, the same application sinks to oblivion with no orders as to costs. DATED & DELVERED AT VIHIGA THEIR 19TH DAY OF MAY 2026........................................R. NYAKUNDIJUDGE