Ondara v Director of Public Prosecutions (Criminal Miscellaneous Application E008 of 2025) [2025] KEHC 18366 (KLR) (13 November 2025) (Ruling) Neutral citation: [2025] KEHC 18366 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E008 OF 2025 TW CHERERE, J NOVEMBER 13, 2025 BETWEEN JOHN MOBISA ONDARA ..................................................................... APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS .................................... RESPONDENT RULING 1. The Applicant, John Mobisa Ondara, was charged and convicted in Keroka Criminal Case No. 29 of 2014 with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The section provides that— “ A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 2. Upon conviction, the applicant was sentenced to serve twenty (20) years’ imprisonment. 3. Aggrieved, the Applicant lodged an appeal to this Court vide Nyamira High Court Criminal Appeal No. 59 of 2016, which appeal was heard and dismissed on 12th October 2018, thereby upholding both the conviction and sentence of the trial court. The Application 4. By a Notice of Motion dated 31st January 2025, the Applicant seeks to be resentenced to a reduced or non-custodial sentence. The application is expressed to be brought under paragraphs 4.8.14, 4.8.16(iii) and 4.8.18 of the Sentencing Policy Guidelines, 2023. The Applicant prays that this Court be pleased to hear evidence affecting sentence, including a pre-sentence report, and to consider his mitigation and time already served, given that he is a first offender of advanced age and a reformed person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18366/eng@2025-11-13 1
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5. The Respondent opposes the application, contending that this Court lacks jurisdiction to review or resentence the Applicant since his appeal in Nyamira HCCRA No. 59 of 2016 was conclusively determined by a Judge of concurrent jurisdiction, and the decision remains binding unless overturned by the Court of Appeal. Issue for Determination 6. The main issue for determination is whether this Court has jurisdiction to review or alter a sentence already afirmed by a Judge of concurrent jurisdiction in Nyamira HCCRA No. 59 of 2016. Analysis 7. It is undisputed that the Applicant’s appeal was heard and dismissed by this Court in Nyamira HCCRA No. 59 of 2016, thereby afirming both conviction and sentence. Upon delivering judgment in its appellate capacity, this Court became functus oficio in respect of that matter and cannot revisit or vary that decision. 8. In Joseph Nduvi Mbuvi v Republic [2019] eKLR, the Court of Appeal held: “ Once a matter has been heard and determined by the High Court, that court becomes functus oficio and cannot reopen or review its decision unless specifically provided for under the law.” 9. From the foregoing, this court finds that it lacks jurisdiction to entertain a resentencing application where the sentence has already been afirmed on appeal by another Judge of concurrent jurisdiction. The Sentencing Policy Guidelines, 2023, relied upon by the applicant, cannot override the clear constitutional and statutory limits on jurisdiction. Conclusion 10. In view of the foregoing, the application dated 31st January 2025 is hereby dismissed for want of jurisdiction. DELIVERED AT NYAMIRA THIS 13 TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Applicant - Present in person For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18366/eng@2025-11-13 2
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