Makokha v Republic (Miscellaneous Criminal Application E009 of 2014) [2025] KEHC 74 (KLR) (16 January 2025) (Ruling) Neutral citation: [2025] KEHC 74 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA MISCELLANEOUS CRIMINAL APPLICATION E009 OF 2014 SC CHIRCHIR, J JANUARY 16, 2025 BETWEEN SALEH NICOLA MAKOKHA ................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Through the Notice of Motion dated 8th January 2024, the Applicant herein seeks for review of his sentence meted out to him following a conviction on a charge of robbery with violence in Kakamega Chief Magistrate’s court criminal case no. 2447 of 2004. 2. He appealed to the high court in Kakamega in criminal Appeal No. 141 of 2010. The Appeal was dismissed on both conviction and sentence. His second Appeal to the court of Appeal at Kisumu in CACRA NO. 45 of 2013 , suffered the same fate. 3. Undeterred, he filed petition No. 63 of 2019 before the high court in Kakamega ,seeking for review of sentence , basing his petition on the supreme court’ s decision on the case of Francis Muruatetu & Ano vs Republic (2017)e KLR which declared mandatory minimum sentence under section 204 of the penal code ,unconstitutional. 4. In a Ruling delivered on 26th August 2021, Justice Musyoka dismissed the petition . In dismissing the petition, the Judge stated that , the supreme court confined their declaration of unconstitutionality of the death sentence to only section 204 of the penal code, that is in relation to the offence of murder and not any other offences. Consequently, he held , this court has no jurisdiction to review any sentences passed in respect to offences of robbery with violence or attempted robbery with violence. 5. The Applicant is back in this court through the present Application. This time under the guise of Miscellaneous Application, but seeking the same prayers he was seeking in petition No. 63 of 2019, that is, seeking for a review of sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/74/eng@2025-01-16 1
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6. This court therefore has adjudicated on the same prayers before and made a decision. It cannot revisit the matter again as it has become functus oficio. If the Applicant was dissatisfied with the orders of Justice Musyoka made on 26th August 2021, his remedy was to move to the court of Appeal. 7. This “lying low” for a few years , then coming back to the same court or a court with concurrent jurisdiction, seeking the same prayers , and hoping to get a different result, is an abuse and misuse of the court process. 8. Consequently, the Notice of Motion dated 8th January 2024 is hereby struck off. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 16TH DAY OF JANUARY 2025. S. CHIRCHIR JUDGE. In the presence of : Godwin Luyundi- Court Assistant. Saleh Nicola- The Applicant Ms .Kagai for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/74/eng@2025-01-16 2
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