https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10764

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **MISC. APPLICATION NO. E013 OF 2026** **ROBERT WANYONYI SITUMA ...............................................APPLICANT** **VERSUS** **REPUBLIC ...............................................................................RESPONDENT** **RULING** 1. This matter comes up for ruling on the application dated 9th June 2026. The applicant Robert Wanyonyi Situma moved this court vide a Notice of Motion pursuant to **Articles 22(1), 1(1), 19(3), 25, 27(1)(2), 23(1)(3), 50(2)(q) and 165 of the Constitution of Kenya and the Sentencing Policy Guidelines** seeking orders; 2. **That the sentence of 20 years, being a "minimum mandatory sentence," denies him a fair hearing by ousting judicial discretion on sentence reduction** 3. **That he does not contest his conviction or the 20-year sentence, but prays for a reduction on the basis of the Court's mercy and leniency** 4. **That he has been rehabilitated and is of good character, and undertakes to keep the peace and reintegrate into society** 5. **That the Court ought to consider his mitigation as part of the sentence reduction** 6. **That Article 165 of the Constitution empowers this Court to entertain an application of this nature** 7. **That a recommendation letter from the prison authorities be considered as proof of his rehabilitation; and** 8. **That he is a first offender who is remorseful and repentant, has been incarcerated for almost seven years, and prays that the Court exercise leniency and the reduction of sentence be allowed, promising never to be found in conflict with the law again.** 9. The Application is premised on the grounds on the face of and the Supporting Affidavit of the Applicant, Robert Wanyonyi Situma, who deposes that he is currently serving 20 years’ imprisonment imposed by the trial court, and he seeks consideration of the period spent in remand custody under **Section** **333(2) of the Criminal Procedure Code.** He further contends that he is rehabilitated and reformed, and that he never had any disciplinary issues in prison with authorities or fellow inmates. 10. The Applicant, Robert Wanyonyi Situma, was charged, tried and convicted of the offence of incest contrary to **Section 20(1) of the Sexual Offences Act No. 3 of 2006**, in **Bungoma CM CR (O.S) Case No. 30 of 2019**, and was sentenced to life imprisonment. Aggrieved, the Applicant appealed to this Court vide **HCCRA No. 60 of 2021**. On appeal, the sentence of life imprisonment was set aside and substituted with a term of twenty (20) years' imprisonment by Honourable Justice Riechi on 14 June 2025. 11. The applicant then filed **Misc. Application No. 063 of 2025** seeking consideration, under **Section 333(2) of the Criminal Procedure Code** of the period he had spent in remand custody prior to conviction. On 15th October 2025, the application was allowed and this court ordered that a period of 2 years and 85 days be factored into the computation of his custodial term. The file was thereafter marked as closed. 12. It is also on record, and not disputed, that prior to the above, the Applicant had filed an earlier application **being HCMISCA No. E039 of 2023,** dated 16th August 2023, canvassing similar grounds as those now raised in the current application. He voluntarily withdrew the said Application in open court on 13th October 2023. 13. The threshold question is not whether the Applicant's personal circumstances are sympathetic but whether this Court, sitting on a fresh Miscellaneous Application, has jurisdiction to re-open and further reduce a sentence that was conclusively pronounced by this Court in the exercise of its first-appellate jurisdiction in **HCCRA No. 60 of 2021** or whether the court is in this regard *functus officio.* 14. Courts over time in a myriad of decisions have clarified the doctrine of functus officio. More particularly, the Supreme Court determined the doctrine of functus officio in **Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR),** cited with approval an excerpt from an article by Daniel Malan Pretorius titled “**The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832,** in which the learned author stated; **“The *functus officio* doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The principle is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”** 1. Once an appellate court has heard an appeal on sentence and substituted a term of years for the sentence imposed by the trial court, that determination is final and this court becomes *functus officio* in respect of the substantive sentence, save for two narrow categories of intervention: correction of a computational or clerical matter expressly provided for by statute, such as the mandatory factoring of pre-sentence remand period under **Section 333(2) of the Criminal Procedure Code** or a further appeal properly lodged before the Court of Appeal. 2. The present application does not fall within either category. It does not point to any computational error, statutory entitlement, or arithmetic omission in the sentence as substituted. Instead, it invites this Court to revisit, on grounds of mercy, remorse, rehabilitation and good conduct, a sentence that has already been judicially considered and fixed on appeal. 3. Those are quintessentially matters going to the exercise of sentencing discretion, which this Court already exercised when it reduced the sentence from life imprisonment to a term of 20 years. There is no statutory or constitutional provision that the Court is aware of that confers upon it a general jurisdiction to periodically revisit a finalized appellate sentence merely upon a showing of good conduct in custody. 4. Moreover, the Applicant's invocation of **Article 165 of the Constitution** does not assist him. **Article 165** defines the general jurisdiction of the High Court. However, it is not a freestanding gateway to collateral re-litigation of a sentence that has already been the subject of a final appellate determination. 5. Similarly, the Applicant's characterisation of the 20-year term as a "minimum mandatory sentence" imposed without discretion is not borne out by the record. The sentence was imposed by this Court on appeal, after consideration of the circumstances of the case, in substitution for the trial court's sentence of life imprisonment. It was not a statutory minimum applied mechanically without recourse to judicial discretion, and the line of authority on unconstitutional mandatory sentencing is accordingly not applicable on these facts. 6. There is, further, the question of the propriety of this successive application. The record shows that this is now the third occasion on which the Applicant has approached the courts on substantially the same subject matter. The filing of successive applications seeking the same substantive relief, without any new statutory basis, change in the law, or fresh matter that could not have been raised earlier, amounts to an abuse of the process of this Court. 7. This is not to say the Applicant is without remedy. Matters of remorse, rehabilitation, conduct in custody and reintegration into society are properly and appropriately placed before the **Power of Mercy Advisory Committee under Article 133 of the Constitution**, which exists precisely to consider such humanitarian factors and to advise the President on the exercise of the prerogative of mercy, including free pardon, remission or commutation of sentence. That is the proper forum for the substance of what the Applicant now seeks, not successive Miscellaneous Applications before this Court. 8. For the foregoing reasons, this Court finds that it lacks jurisdiction to further reduce the sentence of 20 years imposed on appeal in **HCCRA No. 60 of 2021**, the said sentence having already been the subject of a final appellate determination by a court of equal and concurrent jurisdiction. 9. It also is to be noted that the prayer for the computation of the period spent in remand has already been heard and determined by this court as herein summarised. 10. In this regard, it is my finding that this court is not only now *functus officio*, but further that this application is mischievous, lacks merit and is an abuse of the court process. Accordingly, the same is now hereby dismissed in its entirety. 11. Right of Appeal 14 days **Read dated and Signed at BUNGOMA on 16th JULY 2026** **E. OMINDE** **JUDGE**