https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8184

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL REVISION NO. E003 OF 2026** **IN THE MATTER OF ARTICLES 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c), 26(1), 27(1) (4), 28, 50(2)(p)(q), 159(2) AND 165(3) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2010** **AND** **IN THE MATTER OF SECTION 295 AS READ WITH SECTION 296 (2) OF THE PENAL CODE** **WILSON JUMA ALIAS ELIJAH …..……………………………….…….. APPLICANT** **VERSUS** **REPUBLIC ………………………………………………………………….. RESPONDENT** **Coram: Before Justice R. Nyakundi** **Mr. Leina Davies for the State** **RULING** 1. Before this Court is a notice of motion by the Applicant, dated on 19th March 2026, seeking the following orders: 2. *THAT, I was charged and convicted for an offence of robbery with violence contrary to section 295 as read with section 296 (2) of the penal code and in count two for gang rape contrary to section 10 of the SOA No 3 of 2006 in criminal case number 539 of 2014 at CM'S Court Vihiga and sentenced to death and 3 years imprisonment respectively, the sentences termed to run concurrently.* 3. *THAT, I appealed to the high Court at Kakamega vide HCCRA.NO.55 of 2016 and my appeal only merited in the quashing of death sentence in robbery with violence and substitute it with 35 years jail term and enhanced the 3 years term in Gang rape to15years.* 4. *THAT, I later appealed to the 2nd appellate Court at Kisumu vide C.O.A NO.178 OF 2019 whereby the same was dismissed on 22.11.2024* 5. Which application is made in the following grounds; 6. *THAT, my first appeal in HCCRA NO.55 OF 2016 at Kakamega High Court partially merited in the sense that the sentence of DEATH in count 1 in the offence of Robbery with violence contrary to Section 296(2) of the penal code was substituted to 35years though the original sentence was said to run concurrently.* 7. *THAT, I filed an appeal to the Court of Appeal at Kisumu vide C.O.A NO.178 of 2019whereby the two sentences in robbery with violence and gang rape was dismissed on 22.11.2024 by the three-Judge bench.* 8. *THAT, the High Court has competent jurisdiction to hear and determine this application under Article 165(3) (b) of the Constitution of Kenya 2010.* 9. *THAT, under the constitution of Kenya under Article 50 (2) (p) (q) an Applicant has a right to benefit from the least severe sentence and have his sentence reviewed.* 10. *That the Applicant approaches this Hon. Court seeking for re-hearing basing mitigations and for re-sentencing.* 11. *That the Applicant herein is a first offender, remorseful and was arrested while in his teenage. He had no family of his own.* 12. *While in custody, he has undergone reformation and rehabilitative programs and now ready to be re-integrated back to his vulnerable parents to better their livelihood* 13. *That the Applicant has served a whooping II years since his arrest thus prays with humility that the Hon. Court consider him reformed and substitute the 35 years sentence with the least or non-custodial sentence or order for release whichever order the Court may deem fit.* 14. *THAT, a sentence of 35 years imprisonment contravenes section 216 and 389 of the criminal procedure codes on mitigation and the values of sentencing as in the sentence Policy guidelines 2016 Paragraph 4;1.* 15. *THAT, under the provisions of the Constitution of Kenya 2010 and Practice and Procedure Rules 2010 this Court has power to hear and determine infringements of fundamental rights and award remedies* 16. In support of the application is the affidavit of one Wilson Juma alias Elijah who deponed as follows: 17. *THAT, I am a Kenyan male adult of sound mind and duly competent to swear this affidavit in a Court of law.* 18. *THAT, I was charges and convicted for an offence of robbery with violence contrary to section 295 as read with section 296 (2) of the penal code in criminal case number 539 OF 2014 at CM's Court Vihiga and sentenced to DEATH on robbery with violence and 3years on gang rape.* 19. *THAT, my first appeal in HCCRA No 55 OF 2016 at Kakamega High Court partially merited in the sense that the sentence of DEATH in main count in the offence of Robbery with Violence was substituted to 35 years and 3 years in gang rape contrary to Section Offences Act No. 3 of 2006 was enhanced to 15 years though the original sentence was said to run concurrently.* 20. *THAT, I file an appeal to the Court of Appeal at Kisumu which was registered vide C.O.A NO.178 OF 2019.* 21. *THAT, the two sentences in robbery with violence and gang rape was upheld.* 22. *THAT, the High Court has competent jurisdiction to hear and determine this application under Article 165 (3) (b) of the Constitution of Kenya 2010.* 23. *THAT, under the constitution of Kenya under Article 50 (2) (p) (q) an Applicant has a right to benefit from the least severe sentence and have his sentence reviewed.* 24. *THAT, a sentence of 35 years imprisonment contravenes section 216 and 389 of the criminal procedure codes on mitigation and the values of sentencing as in the Sentence Policy guidelines 2016 Paragraph 4;1.* 25. *THAT, under the provisions of the Constitution of Kenya 2010 and Practice and Procedure Rules 2010 this Court has power to hear and determine infringements of fundamental rights and award remedies* 26. *THAT, I am a pauper who cannot incur any costs for preparation of this application thus pray that such costs be waived.* 27. *THAT, I pray this Court to substitute 35 years in robbery with violence and 15 years in gang rape to a non-custodial sentence, since the Applicant is well reformed and rehabilitated for he has served over 11 years in prison.* **Decision** 1. This application for review of sentence cannot be determined by this Court for want of jurisdiction and for being *res judicata*. The Supreme Court in **KCB v Muiri Coffee Estate Ltd & Another** **Motion No. 42 of 2014 [2016] eKLR** heldas follows: *“[52] 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….[55]..Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept...”* 1. Similarly, in **Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR)** stated that: *“This Court has no jurisdiction to revisit the factual findings of either the High Court or Court of Appeal on this issue. We have already answered the four critical questions in exercise of our jurisdiction under Article 163 (4) (b) of the Constitution… We may however not delve into the factual findings of the Trial Court and Court of Appeal…Challenges of findings or conclusions on matters of fact by the trial Court of competent jurisdiction after receiving, testing and evaluation of evidence does not bring up an appeal within the ambit of Article 163(4)(a)”* 1. In the same vein this Court has no jurisdiction to revisit the legal and factual findings of either the High Court or the Court of Appeal on this issue on sentence. The Applicant is therefore estopped from re-litigating the issue of sentence before this Court. Similarly, Section 120 of the Evidence Act states as follows: “*When one person has by his declaration act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such other person or his representative to deny the truth of that thing.”* 1. In addition to the Evidence Act Sir William Holdsworth notes*:* *“Thus, the doctrine of estoppel……accommodated itself to the gradual changes of men’s ideas as to the nature of a trial originally in an age when the main interest of the trial centered round as a mode of proof, it was at first regarded simply as a mode of proof. But now that the main, interest of the trial centers round the evidence, produced to prove the issue, it is, in its important form, simply a rule of evidence”* Thereof the cites Lord Wright vs dicta in **Canada And Dominion Sugar Company Limited V. Canadian National (West Indies) Steamship Limited** that:- *"Estoppel is a complex legal notion involving a combination of several essential elements, the statement to be acted on, "action on the faith of it, resultant detrimental to the actor, Estoppel is often described as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law …. Estoppel is different from contract both in its nature and consequences. But the relationship between the parties must be such that the imputed truth of the statement is a necessary step in the constitution of a cause of action"* PHIPSON who apparently adopts the reasoning of Lord Wright in case, notes: *"An estoppel is a rule whereby a party is precluded from denying the existence of some facts which he has formerly asserted. It is usually said only to be a rule of evidence because at common law an action cannot be founded thereon, but in equity an action and in both a defence can be founded on estoppels and as estoppels must be pleaded and evidence not, it may in many cases be regarded as a rule of substantive law"* 1. Thus, by dint of the doctrines of *res judicata* and estoppel the application to reopen the proceeding on sentence is dismissed. **DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026** **…………………………………..** **R. NYAKUNDI** **JUDGE**