https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8339

Onyango v Republic (Criminal Miscellaneous Application E049 of 2025) [2026] KEHC 8339 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEHC 8339 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E049 of 2025 RN Nyakundi, J June 15, 2026 Between Nincacious Odiwour Onyango Applicant and Republic Respondent Ruling 1.The Applicant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was convicted of the main charge and sentenced to twenty (20) years imprisonment. 2.Being aggrieved by the said decision, he lodged his appeal in this court Vihiga High Court, to wit, HCCRA No 41 of 2021 where his conviction was upheld and his sentence reduced to fifteen (15) years imprisonment. 3.On 6th March 2024, he filed a Notice of Motion application dated 28th February 2024 seeking a review of his sentence. The same was dismissed by this court vide its Ruling of 26th June 2025. 4.On 12th September 2025, he filed an undated Notice of Motion application seeking an order that he serves the remaining part of his sentence (ten (10) years) on probation or any other non-custodial sentence. 5.He urged the court to consider that he had already served one third (1/3) of his sentence and had been fully rehabilitated through programs (certificates and diplomas) undertaken in prison. 6.His Written Submissions were dated 9th December 2025 and filed on 15th December 2025 while those of the Respondent were dated 6th February 2026 and filed on 9th February 2026. The Ruling herein is based on the said Written Submissions which parties relied upon in their entirety. Decision 7.The Applicant pleaded with this court to consider that during his incarceration, he was living peacefully with fellow inmates and was now reformed and rehabilitated. He believed that he had acquired spiritual and life skills which would enable him re-integrate well back to society and live a self-supportive life as a law-abiding citizen. He promised to never be found in conflict again and to promote the spirit of reconciliation. 8.He asserted that during his arrest he had no laid down his family foundation and that he was the sole breadwinner of his family and his children who had dropped out of school. He added that his family was poor and that his long incarceration subjected them to severe suffering. He asserted that he was arrested at the age of twenty-five (25) years and was currently thirty (30) years and was willing to have a fresh start in life. 9.The Respondent relied on the case of Republic v Jagani & Another (2001) KLR 590 where it was held that the purpose of the sentence was deterrence, rehabilitation and reparation for harm done to victims in particular and to society in general. 10.He contended that the sentence that was meted out by this court to the Applicant was lenient considering the nature of the case and therefore this court should not interfere with it so as to instill a sense of responsibility for his actions and also allow for his rehabilitation. 11.He further submitted that the Applicant had previously appealed to this court which upheld the conviction and reviewed the sentence. In this regard, it placed reliance on the case of John Kagunda Kariuki v Republic [2019] eKLR where it was held that as the applicant’s appeal had already been heard by the High Court, he could not return to the same court for review of his sentence but he was at liberty to make an argument for reduced sentence at the Court of Appeal. 12.He invoked Section 362 and 364 of the Criminal Procedure Code and Article 165 of the Constitution of Kenya and argued that the powers of revision of the High Court were to be exercised only over the subordinate courts and not with respect to its own decisions. It added that a convicted person could not also appeal and seek a review of his sentence at the same time. 13.He pointed out that as this court had reviewed the Applicant’s sentence on appeal, it lacked the jurisdiction to entertain an application for review of sentence in respect of the same matter again. It added that he was at liberty to approach the Court of Appeal. It was emphatic that the application herein lacked merit and ought to be dismissed. 14.The Applicant herein was sentenced under Section 8(1) as read with Section 8 (3) of the Sexual Offences Act Cap 63A (Laws of Kenya). The said Section 8(3) of the Sexual Offences Act provides as follows: -“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 15.This court could not therefore fault the Trial Court for sentencing the Applicant to twenty (20) years imprisonment as that was lawful. Be that as it may, this court reduced his sentence to fifteen (15) years imprisonment on appeal. Notably, this court sentenced him to a lesser sentence than what was prescribed as the mandatory minimum in the Sexual Offences Act as the jurisprudence at the time he was sentenced allowed courts to exercise discretion during sentencing. 16.However, on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi v Republic [2022] eKLR which had reiterated the reasoning in the case of Dismas Wafula Kilwake v Republic [2018] eKLR to the effect that Section 8 of the Sexual Offences Act had to be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. In its said decision, the Supreme Court held that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. 17.The Petitioner’s claim to have his sentence reviewed pursuant to Section 362 and 364 of the Criminal Procedure Code and by import of the law Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules raises issues in which the doctrine of res judicata and estoppel frowns for the remedies being sought have already been canvassed before other superior Courts and a determination made on the merits. The doctrine of res judicata has been applied in several cases in the last few years as can be seen shortly in this ruling. The doctrine has been described by Spencer as applying to a final decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto. (See G. Spencer The Doctrine of Res Judicata 1994 at p. 1). 18.In order to appreciate this doctrine of res judicata and its applicability in Kenya in so far as the interpretation of Section 7 of the CPA the following cases shades lights in the transformative jurisprudence in the matter: Dina Management Ltd v County Government of Mombasa & 5 Others [2021] eKLR (SC Petition 8 of 2021): This case involved the appellant attempting to re-litigate ownership rights over a property already determined in previous, different suits. The Court emphasized the importance of ensuring that the same issues are not repeatedly litigated. Samson Machi v George Njoroge [2015] Supreme Court ruling: While discussing the principles of estoppel by record, the court acknowledged the application of res judicata where issues in a new suit have been settled by a previous judgment in rem, such as in the case regarding FERI and COD certifications. Relevant Contextual Principles (2025): Recent high-level filings, such as George Gilbert & Mombo Advocates v Saimanga and Okiya Omtatah v Portside Freight Terminals Ltd & 13 Others, demonstrate that res judicata is often argued in cases involving the setting aside of execution orders based on prior litigation. 19.The key principles which are explicitly developed in the various case law include the following: Same parties/issue: for res judicata to apply, the matter must have been directly and substantially in issue in a former suit between the same parties. Exceptions: res judicata may not apply if it can be demonstrated that the prior decision was obtained through fraud or if new, significant evidence is discovered, as seen in cases like Amn V Pmn (2016) eKLR 20.In criminal cases the success of a defence over a Petitioner or conflict depends on satisfying similar requirements to those let down in civil cases by the doctrine of res judicata. There must be identity of parties and of subject matter. With regard to the latter requirement, it must be shown not merely that the facts necessary to support the second prosecution by the Petitioner were the same facts as in the first prosecution during the appeal on both conviction and sentence and that the offences are identical. Therefore, the Applicant in his affidavit has raised many grounds where this Court should invoke review jurisdiction so that he can be set free or be placed on non-custodial sentence. Unfortunately, these are the same issues which have been revisited by the Superior Courts against the impugned judgment of the trial Court. Essentially, res judicata applies because it is the principle which safeguards an abuse of the Court process and a re-litigation by the same parties or convicts as the case may be filing multiplicity of applications expecting to receive a different decision altogether. It is trite under res judicata principle that once a Court or a Tribunal has made a decision the parties cannot come back for another bite of the cherry save by the proper appeal route. Undoubtedly, from the record the Applicant or Petitioner has already been heard by an appeals Court on both conviction and sentence. 21.In criminal law estoppel often referred to as issue estoppel or governed under the doctrines of res judicata and autrefois acquit/convict prevents the prosecution from relitigating a specific issue of fact of law that has already been decided by a final judgment in favor of the accused. There is also a jurisdictional issue given the facts of the case that both the High Court and the Court of Appeal have already dealt with the conviction and sentence which now is being introduced as a fresh matter for consideration by the Petitioner. 22.As this court was bound by the decisions of courts superior to it, its hands were tied regarding exercising its discretion to reduce the Applicant’s sentence. It had no option but to leave the said sentence that was meted against the Applicant herein undisturbed. Disposition 23.For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 11th September 2025 and filed on 12th September 2025 was not merited and the same be and is hereby dismissed. 24.Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 15TH DAY OF JUNE 2026…………………………………….R. NYAKUNDIJUDGE