https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11022

Kokoro v Republic (Miscellaneous Criminal Application E076 of 2026) [2026] KEHC 11022 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 11022 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Criminal Application E076 of 2026 JM Omido, J July 8, 2026 Between Tony Kokoro Applicant and Republic Respondent Ruling 1.The Applicant herein, vide his notice of motion dated 18th May, 2026 seeks an order that his sentence of 15 years imprisonment be reviewed and be substituted with a probation sentence. 2.The application is founded on the grounds, as reiterated in the Applicant’s supporting affidavit, that he has reformed and undergone rehabilitation during his incarceration and deeply regrets the criminal conduct that resulted in his conviction and imprisonment. He further avers that, being still a young person, he is committed to leading a law-abiding life and undertakes not to reoffend or pose any danger to society if released. He accordingly implores the Court to afford him an opportunity to reunite with his family and rebuild his life. 3.The application is opposed and to that end the Respondent filed a replying affidavit sworn on24th June, 2026 by Ms. Mercy Mutheu Muema, learned Prosecution Counsel. 4.In her affidavit, Ms. Muema deposes that the Applicant was charged before the Senior Principal Magistrate’s Court at Maseno in Criminal Case No. 1344 of 2014 with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, with an alternative charge of committing an indecent act with a child. 5.She avers that, following a full trial, the Applicant was convicted of the principal offence and, on 15th January, 2015, sentenced to twenty (20) years’ imprisonment, being the minimum sentence prescribed by law for defilement of a child aged between twelve and fifteen years. 6.Ms. Muema further deposes that the Applicant has incorrectly stated in both his application and supporting affidavit that he was sentenced to fifteen (15) years’ imprisonment, whereas the court record and the warrant of commitment clearly show that he was sentenced to twenty (20) years’ imprisonment with effect from 15th January, 2015. 7.Learned Counsel avers that the Applicant appealed against both his conviction and sentence in High Court Criminal Appeal No. 67 of 2015, Tony Kokoro v Republic. She states that the appeal was dismissed in its entirety on 11th February, 2016, with the High Court affirming both the conviction and the twenty-year sentence after finding that the sentence imposed was the statutory minimum and therefore lawful. 8.She deposes that, in view of the determination of the appeal, the legality of both the conviction and sentence has already been conclusively determined by a court of concurrent jurisdiction, and therefore this Court lacks jurisdiction to revisit the same issues. She maintains that the sentence was lawfully imposed in accordance with the Sexual Offences Act and that there exists no illegality, irregularity, impropriety or other error warranting the Court’s intervention. 9.It is Ms. Muema’s further deposition that the Applicant’s remorse, rehabilitation and status as a first offender do not constitute legal grounds for reviewing or substituting a lawful custodial sentence with a non-custodial one. In support of this position, she relies on Gichimu v Republic (Miscellaneous Criminal Application E192 of 2025) [2025] KEHC 17268 (KLR), in which the Court declined to revise a lawful sentence notwithstanding the Applicant’s rehabilitation and first-offender status. 10.Finally, Ms. Muema deposes that the Applicant has failed to demonstrate any illegality, excessiveness or other legally recognizable basis for interference with the sentence. She contends that the present application is devoid of merit, amounts to an attempt to relitigate matters already determined on appeal, is frivolous and an abuse of the court process, and seeks to circumvent the lawful minimum sentence prescribed by Parliament for the protection of children. 11.She accordingly urges the Court to dismiss the application in its entirety. 12.Having carefully considered the application, the supporting affidavit, the replying affidavit, the record and the applicable law, I am of the considered view that the following issues arise for determination:a.Whether this Court has jurisdiction to review or substitute the Applicant’s sentence after the same was affirmed on appeal by the High Court.b.Whether the Applicant has established a legal basis for the review or substitution of his sentence. 13.The first issue concerns the jurisdiction of this Court. Jurisdiction is the cornerstone upon which every judicial proceeding rests. Without it, a court must down its tools. 14.As was famously stated in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything, and where a court finds that it lacks jurisdiction, it has no option but to refrain from taking any further step in the matter. 15.The record before this Court shows that the Applicant was convicted by the Senior Principal Magistrate’s Court at Maseno of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and was sentenced on 15th January, 2015 to serve twenty (20) years’ imprisonment. 16.Dissatisfied with both conviction and sentence, he exercised his undoubted right of appeal by filing High Court Criminal Appeal No. 67 of 2015, Tony Kokoro v Republic. That appeal was heard and determined by the High Court, which dismissed it in its entirety and expressly upheld both the conviction and the sentence imposed by the trial court. 17.Consequently, the legality, propriety and correctness of the Applicant’s sentence have already been the subject of judicial scrutiny by the High Court exercising its appellate jurisdiction. The sentence therefore merged into the appellate judgement and now derives its force not merely from the trial court’s decision but also from the judgement of the High Court. 18.This Court is likewise constituted as the High Court. It exercises jurisdiction concurrent with that exercised by the Judge who heard and determined High Court Criminal Appeal No. 67 of 2015. It is a fundamental principle of our judicial system that one Judge of the High Court cannot sit on appeal over, vary, set aside or review the decision of another Judge of the High Court in the absence of express statutory or constitutional authority. To do so would offend the principle of finality in litigation, undermine certainty in judicial proceedings and create the undesirable spectacle of Judges of coordinate jurisdiction overturning each other’s decisions. 19.The Applicant has not invoked any statutory provision conferring jurisdiction upon this Court to reopen or vary a sentence that has already been affirmed by the High Court on appeal. Neither has he demonstrated that the appellate judgement is a nullity or that there exists any exceptional circumstance recognized in law that would warrant this Court's intervention. 20.What is before the Court is, in substance, an invitation to revisit and alter a sentence whose legality has already been conclusively pronounced upon by a court of concurrent jurisdiction. That invitation cannot be accepted. The proper recourse available to the Applicant, if he seeks to challenge the sentence as upheld by the High Court, is to invoke the appellate jurisdiction of the Court of Appeal. This Court, being one of concurrent jurisdiction with the Judge who determined the appeal, cannot sit on appeal over or vary that decision. 21.The Applicant principally relies on his alleged rehabilitation, remorse, youthful age and desire to reunite with his family. These are undoubtedly matters that may properly be considered in appropriate legal contexts. However, they cannot by themselves confer jurisdiction upon a court where none exists. Jurisdiction cannot be founded upon sympathy, compassion or equitable considerations. It must be conferred by the Constitution or statute. 22.Moreover, the Applicant has not alleged that the sentence imposed was illegal, unconstitutional or founded upon any error of law. Indeed, the sentence was expressly upheld by the High Court as being lawful. In those circumstances, this Court lacks jurisdiction to substitute the custodial sentence with a probation sentence merely because the Applicant now considers himself rehabilitated. 23.I therefore find and hold that this Court lacks jurisdiction to entertain the Applicant’s invitation to review or substitute the sentence that was affirmed by another Judge of the High Court. That finding alone is sufficient to dispose of the application. 24.Even assuming, for the sake of argument, that jurisdiction existed, the Applicant has not demonstrated any legally recognized ground upon which the sentence could be interfered with. His application is founded entirely on post-conviction rehabilitation and remorse. While those considerations are commendable and may reflect positively on the Applicant’s personal reform, they do not constitute independent legal grounds for reopening a lawful sentence that has already been confirmed on appeal. A sentence imposed in accordance with the law cannot be varied merely because an offender has served part of it and has since undergone rehabilitation. 25.The Applicant’s rehabilitation is nevertheless a matter deserving of encouragement. It is one of the principal objectives of imprisonment that offenders reform and prepare themselves for reintegration into society upon completion of their lawful sentences. However, such rehabilitation does not empower this Court to disregard jurisdictional limits or to alter a sentence that has already been affirmed by a court of concurrent jurisdiction. 26.In the result, I find that the application dated 18th May, 2026 is devoid of merit. The same is hereby dismissed for want of jurisdiction. 27.This file is hereby closed. DELIVERED (VIRTUALLY) DATED AND SIGNED THIS 8TH DAY OF JULY, 2026.JOE M. OMIDOJUDGEApplicant: Present, Virtually.Respondent: Ms. Muema.Court Assistants: Mr. Ngoge & Mr. Juma.