https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6811

Onyango v Republic (Criminal Miscellaneous Application E068 of 2025) [2026] KEHC 6811 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6811 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E068 of 2025 RN Nyakundi, J May 18, 2026 IN THE MATTER OF ARTICLES 50(2)(p)(q), 22(1)(3), 25, 27(1), 19(3) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ARTICLE 269(2) OF THE PENAL CODE CAP 63 LAWS OF KENYA AND IN THE MATTER OF SENTENCE REDUCTION AND SUBSTITUTE IT WITH A LESSER SEVERE SENTENCE Between Wycliffe Imbuga Onyango Applicant and Republic Respondent Ruling Introduction 1.The Applicant was charged, tried, found guilty, convicted and sentence for the offence of robbery contrary to Section 296(2) of the Penal Code. He was subsequently to suffer death which was later to be commuted to life imprisonment with effect 20th October 2016. He was aggrieved with the conviction and sentence the record tells us necessitating him to prefer an appeal to the High Court in Criminal Appeal Case No. 78 of 2016 and thereafter to the Kenya Court of Appeal Case No. 79 of 2018. In both Courts he lost on conviction and sentence. 2.Now before this Court is a notice of motion by the Applicant, dated on 15th December 2025, seeking the following orders:a.May this Hon. Court be pleased to hear and determine this application on sentence reduction.b.May this Hon. court be pleased to waive any fee incurred in this application as I am a pauper and in prison.c.Or any other orders that this Hon. Court may deem just and fit. 3.This application is for sentence reduction: Thus;a.That the applicant was arrested charged, convicted and sentenced to serve a Death sentence for the offence of Robbery with violence contrary to section 296(2) of the Penal Code.b.That the applicant prays for sentence reduction, his appeals having unsuccessful in the first appellate court vide HCCR No.78 of 2016 and the second court vide COA No.79 of 2018c.Am now a law abiding citizen and very remorseful for the offence through the prison rehabilitation programsd.That my right to mitigate under the provisions of section 216 and 329 of the CPC under the interest of justice applicable for sentence reduction. 4.This affidavit forms the basis upon which the Applicant seeks leave of the Court to interfere with the sentence imposed by the trial Court and thereafter litigated before the High Court and subsequently to the Kenya Court of Appeal and duly dismissed. Decision 5.This Court reminds itself that sentence process is a complex and difficult exercise and which cannot be approached with caprice or win. It can never be a rigid arithmetic, mechanistic or a scientific process. This ultimate and penultimate decision is the one used essentially to maintain public confidence in the justice sector for one must have regard to the gravity of the offence committed by the offender, the victim impact and the public interest as a whole. 6.It is one of the important judicial duties to be performed by a Judge or the Magistrate as the case may be. The clearest responsibility of sentencing Judges and Magistrates to be fully aware of the guidance given in the judicial precedents and the Sentencing Policy Guidelines of the Judiciary 2023 and faithfully apply it to cases even though the sentencing exercise may be both difficult and painful to fathom. The guideline case of the Sentencing Policy of the Judiciary is to be interpreted in a manner which takes into account various factors and objectives. That is how one can be able to get to the bottom pit of the matter to comprehensively come up with the range of sentences to impose in a particular offence. 7.The following objective and principles of sentencing in the Sentencing Policy Guidelines of the Judiciary must mirror the decision making process of both at the trial Court and on Appeal’s Court:Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender.Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances.Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines.Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process.Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole. More guidance is given on this in paragraphs 2.3.21 to 2.3.30. 8.Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other – insofar as possible, sentences imposed should be geared towards meeting the objectives in totality.Retribution: To punish the offender for their criminal conduct in a just manner.Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person.Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.Denunciation: To clearly communicate the community’s condemnation of the criminal conduct.Reconciliation: To mend the relationship between the offender, the victim and the community.Reintegration: To facilitate the re-entry of the offender into the society. 9.In the instant application the record has been examined and reviewed and it paints a picture of an Applicant who has litigated his issues on conviction and sentence to the Kenya Court of Appeal. The substantive issues were extensively and intensively considered and a final decision made including that of sentence the subject matter of this motion. 10.What this means in law in criminal cases the civil doctrine of res judicata though not commonly used as a blanket on any interlocutory applications post judgment, it is applicable to prevent an accused person from filing multiple applications as a guise for seeking justice. It equally applies to prevent an accused person from being retried for an offence he or she has already been legally acquitted or convicted by a competent Court duly constituted under Article 50(1) of the Constitution. 11.In the application before this Court, there is also the concept of admissibility of the subject matter which concerns the power of this Court to exercise its jurisdiction in particular on review of sentence which has already been litigated up to the Court of Appeal. The principles related to the concept of admissibility of a cause of action is the rule of res judicata profoundly defined in civil law field under Section 7 of the Civil Procedure Act which bars any Court from exercising jurisdiction over a dispute, or claim or proceedings that has or have already been settled by another Tribunal or Court. In other words, may it be civil or criminal a judgment delivered by a judicial body duly constituted under Article 50(1) of the Constitution and other enabling Statutes carries a preclusive effect on the successive proceedings over the civil matter. The rule of res judicata is both a doctrine of domestic and International Law. It is not therefore about private rights which are subject of res judicata. It applies in equal measure in respect of matters of public policy in the realm of criminal justice system it ensures economic efficiency in the judicial process, brings an end to multiplicity of litigation under the context of resentencing or review of sentence so as to further legal certainty of decisions of Courts and Tribunals. 12.The Applicant in this case having failed to get a remedy at the High Court and the Court of Appeal cannot allege any violation of equality before the law or violation of fair trial rights under the Constitution to challenge the decision made by the trial Court and subsequently affirmed by the two Superior Courts. The resentencing process in Kenya is very controversial as the Pandora’s box seems to have been the interpretation and construction of the predominant principle in the Francis Kariuko Muruatetu Case. The Superior Courts and the Magistrate’s Courts have made decisions and declared admissibility of evidence on matters of resentencing which essentially border on res judicata. The Applicant in cases of this nature is mandated by law to bring the entire case to the Courts and not to litigate in piece meal. 13.This Court has reviewed both the trial Court judgment and subsequent decisions before the High Court and the Court of Appeal and this fundamental doctrine of res judicata is for all Courts that there must be an end to litigation. The Learned Authors in Halbury’s Laws of England, 4th Edition Vol. 16 paragraph 1528 reads in part as follows:“In order for the defence of res judicata to succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff has had an opportunity of recovery and but for his own fault might have recovered in the first action that which he seeks to recover in the second action… It is not enough that the matter alleged to be concluded might have been put in issue, or that the relief sought might have been claimed. It is necessary to show that it was actually put in issue or claimed.” 14.The judgments of the Courts from the primary Subordinate Court all the way to Court of Appeal is a judgment in rem. There is no difficulty in determining that the Applicant and the State were involved in the litigation process. The judgments bind the parties and the whole world is bound by it unless the same has been reviewed or set aside by another competent constitutional authority or judicial body. The desire to re-litigate this matter on sentence by the Applicant has no force of law and if this Court was to go forward with the application on the merits it will be an abuse of the Court process. Re-litigation on sentencing by the various convicted persons in our prisons maybe a form of seeking sympathy and mercy but that is not the main reason why Courts exist in Kenya. 15.In my considered view, the Applicant is estopped from initiating a prosecution of the issue of sentence before this Court which had already been dealt with by the previous Courts with finality. The doctrine of estoppel is founded on the premise that it would be most unjust and inequitable that if a person or for our case an Applicant already convicted and serving sentence moves representations made by himself or by legal Counsel mounts a litigation which has already been heard and determined conclusively with the final judgment of a Court of law. The State and the Applicant are bound by the previous judgments pronounced by the various levels of Courts. What the Applicant is doing by this very nature of application is to trouble the Court and vex it for the same cause of action. It is for these reasons I dismiss the application to resentence the Applicant under Section 382 of the Criminal Procedure Code. It is so ordered. DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026........................................R. NYAKUNDIJUDGE