Chepkwony v Republic (Miscellaneous Application E081 of 2025) [2026] KEHC 5112 (KLR) (22 April 2026) (Ruling)

Chepkwony v Republic (Miscellaneous Application E081 of 2025) [2026] KEHC 5112 (KLR) (22 April 2026) (Ruling) Neutral citation: [2026] KEHC 5112 (KLR) Republic of Kenya In the High Court at Nakuru Miscellaneous Application E081 of 2025 SM Mohochi, J April 22, 2026 Between Vincent Kipngeno Chepkwony Applicant and Republic Respondent Ruling 1.This is a Notice of Motion application dated 20th May 2025 together with the applicant’s sworn affidavit seeking sentence be reviewed to run from the date of his incarceration and not from the date of judgment; 2.The Applicant is currently serving a twenty-five (25) years Imprisonment having been convicted and sentenced to life imprisonment, for the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act, No. 3 of 2006, subsequently on Appeal the sentence was reviewed and the Court explicitly directed the sentence to run from the date of the Appeal judgment; 3.The Applicant concedes in his sworn affidavit that the sentence he seeks reviewed is the sentence imposed by the High Court. 4.This Appeal is unopposed by the state. 5.Thus, there are two issues for determination;i.The jurisdiction of this Court to hear the application; andii.Whether the sentence imposed on Appeal is subject to revision by this Court; Jurisdiction 6.Jurisdiction is the judicial power given to the Court to adjudicate upon a dispute. Without jurisdiction, a Court cannot adjudicate the case before it. Jurisdiction is therefore everything and is of such preliminary importance. As was held by Nyarangi J in the case of Owners of Motor vessel Lilian “S” v. Caltex Oil Kenya Ltd. [1989] KLR 1 at page 12 that;“Jurisdiction is everything. Without it, a Court has no power to take one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending the evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 7.Lack of jurisdiction thus renders a Court’s decision void as opposed to it being merely voidable. When an act is void, it is nullity ab initio. It cannot find any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) [1962] AC 152 succinctly makes this point. He stated thus:“Court has discretion in matters that are voidable not to proceedings that are a nullity for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the Court ...”And;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”; 8.The Supreme Court of Kenya cemented this question in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others, Application No. 2 of 2011, where it pronounced that:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…” 9.The High Court has the mandate under Article 165 (3) of the Constitution to hear and determine as well as to enforce matters of rights and fundamental freedoms enshrined in the constitution. 10.Under Article 50(2)(p) of the Constitution: -50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. 11.The Review of the Trial Court sentence sought, was subject to exhaustive adjudication in High Court at Nakuru, Criminal Appeal Number 98 of 2018, the judge was conscious when stating when the sentence is to run from. 12.This Court is functus officio having considered and determined the sentence question in its judgement on the 4th March 2021. 13.The Application is hereby dismissed for lack of jurisdiction. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 22ND APRIL 2026MOHOCHI S.MJUDGE