Ezekiel Ombaso Obwoge v Republic

EZEKIEL OMBASO OBWOGE ............................................................. PETITIONER AND REPUBLIC ............................................................................................ RESPONDENT JUDGMENT 1. The Petitioner alongside others were charged with the ofience of robbery with violence contrary to section 296 (2) of the Penal Code. The Petitioner faced an alternative charge of handling stolen property contrary to section 322 (2) of the Penal Code. The Petitioner was convicted for the ofience of robbery with violence and was sentenced to death. 2. The Petitioner appealed his conviction and sentence in this court vide Criminal Appeal Number E004 of 2020. In its Judgement dated 1st August 2022, this court (Korir J.) upheld the Petitioner’s conviction and sentence and dismissed his Appeal. 3. The Petitioner has again applied for resentencing through a Notice of Motion Application filed on 22nd August 2023. He states that the death sentence was declared unconstitutional and was thus serving an illegal sentence. The Petitioner’s case 4. Through his Supporting Affidavit filed on the same date, the Petitioner stated that the Supreme Court had declared the mandatory death sentence unconstitutional. That on 20th October 2016, his death sentence was commuted to life imprisonment by the President. He relied on Articles 19, 20, 27, 28 and 50 of the Constitution and Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR). 5. The Petitioner submitted that he had been in custody since 2011. That he had reformed, rehabilitated and was remorseful. That he had undertaken courses while in prison which have transformed his life. The Petitioner submitted that the death sentence did not abide by the values set by Articles 20, 28, 48 and 50 of the Constitution of Kenya. That the circumstances of the case did not warrant a death sentence. 6. It was the Petitioner’s submission that his mitigation was not considered by the trial court. That the maximum sentence was intended for the worst ofienders. It was the Petitioner’s further submission that this court considers the period spent in custody before he was sentenced. He relied on section 333 (2) of the Penal Code and Robert Mutashi Auda vs Republic (2018) eKLR. Respondent’s submissions 7. Through its written submissions dated 23rd June 2025, the Respondent submitted that the death sentence was provided for under section 296 (2) of the Penal Code. That at the time the mandatory nature of the death sentence had been declared unconstitutional, the Petitioner had already been sentenced. 8. It was the Respondent’s submission that the Petitioner was charged, convicted and sentenced in the Magistrate’s Court. That he appealed to this court and his conviction and sentence was upheld. It was the Respondent’s further submission that if the Petitioner was dissatisfied with this court’s decision, he should have appealed to the Court of Appeal. That this court was functus officio. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17138/eng@2025-11-24 2

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Analysis 9. As stated earlier in this Ruling, the Petitioner was convicted and sentenced to death by the Magistrate’s court for the ofience of robbery with violence. The Petitioner appealed to this court challenging his conviction and sentence. The conviction and sentence were upheld by this court through Its Judgement dated 1st August 2022. It is my view that once this court upheld the Petitioner’s sentence, it became functus officio and thus the Petitioner’s recourse lay with the Court of Appeal. In Elishipha Muthoni v Republic [2022] KEHC 1410 (KLR) Chepkwony J. held: “ The law abhors that practice of a Judge sitting to review a Judgment or decision of another Judge of concurrent jurisdiction. This is because the rule of the thumb is that courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts of higher Jurisdiction than theirs. The court which ought to deal with an issue arising out of the decision of this court is the Court of Appeal as it is the one with jurisdiction under Article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code. This is in appreciating the provisions of Article 50(2) (q) of the Constitution of Kenya, 2010 which guarantees the right of a person if convicted, to appeal to, or apply for review by, a higher court as prescribed by the law.” 10. Further, in Lawrence Kariuki Njeru v Republic [2021] KEHC 6118 (KLR), Njuguna J. held: “ …………. Further this court is bereft of jurisdiction to review the said judgment as doing so would be tantamount to sitting as an Appellate court on the judgment of the Learned Judge and which act the law abhors. The petitioner ought to ventilate the issue on the resentencing and/or excessive sentence at the Court of Appeal………” 11. In the end, I find that this court has no jurisdiction to review the Petitioner’s sentence and therefore the Petition lacks merit and is dismissed. JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 24TH DAY OF NOVEMBER, 2025. …………………………………… HON. JULIUS K. NG’ARNG’AR JUDGE Judgement delivered in the presence of: Siele/Susan (Court Assistants) Petitioner:Present in person Koech for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17138/eng@2025-11-24 3

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