https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6305

Magamu v Republic (Miscellaneous Criminal Application E071 of 2025) [2026] KEHC 6305 (KLR) (11 May 2026) (Ruling) Neutral citation: [2026] KEHC 6305 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Criminal Application E071 of 2025 RN Nyakundi, J May 11, 2026 Between Seth Ingahu Magamu Applicant and Republic Respondent Ruling 1.What is pending before this Honourable Court for determination is an undated Notice of Motion Application in which the Applicant is seeking the following orders: -a.That this Honourable Court be pleased to review and substitute the remaining sentence of less than 8 months’ imprisonment with a probation order for the remaining term of the sentence in line with Section 362 of the Criminal Procedure Code, Article 50(2)(p) of the Constitution and the Probation of Offenders Act, Cap 64 (Laws of Kenya).b.Spentc.That this Honourable Court considers the provisions of Article 159 2(d) of the Constitution and the principles of restorative justice in making a just and fair determination.d.That any other order or relief that this Honourable Court may deem fit in the interests of justice be granted. 2.The Application is made on the following grounds on the face of it among others: -a.That the Applicant was convicted as a first offender for attempted defilement contrary to section 9(1) of the Sexual Offences Act No 3 of 2006.b.That the Applicant deeply regrets and is remorseful about the incident that led to the conviction and has demonstrated positive rehabilitation while in custody.c.That the Applicant has undergone extensive rehabilitation, acquiring skills in welding, Bible studies and spiritual nourishment, which have reformed his character and prepared him for reintegration into society.d.That the Applicant has exhibited exemplary conduct in prison and has no pending appeal against his conviction on sentence.e.That it is in the interests of justice, fairness and proportionality in sentencing to allow the Applicant to reintegrate into society under appropriate supervision as envisaged under Article 27(1), (2) and 28 of the Constitution. 3.The Application is supported by the annexed Affidavit sworn by the Applicant who deponed as follows: -a.That I was convicted of the offence of attempted defilement contrary to Section 9(1) of the Sexual Offences Act No 3 of 2006.b.That I deeply regret the unfortunate incident that led to my conviction and offer my sincere apologies to the victim, her family and society at large as I was ignorant of the law.c.That during my time in prison I have undergone extensive self-reflection, training in welding and rehabilitation programs that had enabled him to reform and develop a positive outlook on life.d.That I am a first-offender with no prior criminal record and have maintained good conduct while in custody.e.That I am not a threat to society, thus, sought for a second chance to reintegrate and contribute positively to the community.f.That it is in the interests of justice that the remaining term of my sentence be substituted with probation under appropriate terms and conditions. Analysis and Determination 4.I have read and considered the Notice of Motion Application and the supporting Affidavit thereto. There is only one issue for determination by this Court being: - Whether the Application is merited? 5.Right from the onset, a perusal of the record herein indicated that the Applicant had already applied for review before this court vide HCCR Miscellaneous Application No E102 of 2024 Seth Ingahu Magamu v Republic whereby this court delivered its Ruling on 30th October 2025. The Applicant was seeking substantially similar orders for review and/or reduction of sentence. The Applicant in the present Application once again seeks substitution of the remaining custodial sentence with a non-custodial sentence under probation while relying on grounds of remorse, rehabilitation, first offender status, good prison conduct and reintegration into society. 6.Therefore, this court did not have the jurisdiction to hear and determine his application a second time as that would amount to sitting on appeal of its own decision as this court had equal and competent jurisdiction to the Judge who had already determine his aforesaid application for review. 7.In view of the above findings the application before this Court is now res judicata. The doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end and the verdict duly translates into fruit for one party, and liability for another party conclusively. 8.In pari materia in construing this application, I am persuaded to import the provisions of civil law under Section 7 of the Civil Procedure Act which states as follows: -“No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 9.The Supreme Court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata: -We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action 10.Moreover, the Apex Court held as follows regarding the doctrine of res judicata: -Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon. Norbert Mao v Attorney-General, Constitutional Petition No. 9 of 2002; [2003] UGCC3. 11.Although the doctrine is codified under civil procedure, courts have consistently held that the principle equally applies to constitutional, judicial review and criminal proceedings where circumstances demand so in order to prevent abuse of the court process and endless litigation. The rationale behind the doctrine is founded on public policy that litigation must come to an end. A party ought not to be permitted to re-open issues that have already been conclusively determined by a competent court merely by filing another application couched in different language but seeking substantially similar reliefs. 12.Applying the foregoing principles to the present Application, this Court notes that the Applicant herein is the same Applicant in Seth Ingahu Magamu v Republic. The Respondent remains the Republic. The issue for determination in both Applications relates to review and/or reduction of the custodial sentence imposed upon the Applicant following conviction for the offence of attempted defilement contrary to Section 9(1) of the Sexual Offences Act. 13.Further, the grounds advanced in the present Application substantially mirror those raised in the previous Application. The Applicant once again relies on remorsefulness, rehabilitation, first offender status, prison reform, good conduct and the need for reintegration into society. These are matters that were either considered or ought to have been raised in the earlier proceedings. This Court cannot sit endlessly to rehear and re-determine issues that have already been conclusively adjudicated upon. To permit such practice would not only amount to abuse of the court process but would also offend the principle of finality in litigation. The Applicant has attempted to invoke Sections 362 of the Criminal Procedure Code, Article 50(2)(p) of the Constitution, Article 159(2)(d) of the Constitution and the Probation of Offenders Act. However, constitutional and statutory provisions cannot be invoked as a mechanism for re-litigating matters that have already been determined by a competent court. 14.Moreover, Section 362 of the Criminal Procedure Code grants this Court revisionary jurisdiction over proceedings of subordinate courts for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. The said provision does not donate jurisdiction to this Court to repeatedly reconsider applications for sentence review that it has already determined. Equally, Article 159(2)(d) of the Constitution cannot be invoked to defeat substantive legal doctrines such as res judicata. The provision was never intended to aid repetitive litigation or to sanitize abuse of the court process. While this Court appreciates the Applicant’s assertion that he has undergone rehabilitation and acquired vocational and spiritual skills while in custody, such considerations cannot override settled principles of law. Courts are obligated to balance the rights of applicants with the equally important principles of certainty, finality and orderly administration of justice. 15.Consequently, I find and hold that the present Application is res judicata. In the premises, the undated Notice of Motion Application lacks merit and is hereby dismissed. It is so ordered. DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY 2026.............................R. NYAKUNDIJUDGERepresentation:M/s Leina Davies for the State