Magoma v Republic (Petition E001 of 2025) [2026] KEHC 785 (KLR) (21 January 2026) (Ruling) Neutral citation: [2026] KEHC 785 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA PETITION E001 OF 2025 TW CHERERE, J JANUARY 21, 2026 BETWEEN FRED ONDIEKI MAGOMA ................................................................. PETITIONER AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Before the Court is an undated Petition, inviting this Court to revisit and interfere with the sentence he is currently serving following his conviction for the ofience of robbery with violence contrary to section 296(2) of the Penal Code. 2. The Petitioner’s criminal process is not in dispute. He was tried and convicted by the Senior Resident Magistrate’s Court at Keroka in Criminal Case No. 273 of 2006 and sentenced to death. His appeal to the High Court at Kisii in High Court Criminal Appeal No. 156 of 2006 was dismissed. A further appeal to the Court of Appeal in Criminal Appeal No. 20 of 2008 (Kisumu) resulted in the conviction being upheld, with the sentence of death set aside and substituted with a sentence of life imprisonment, which sentence the Petitioner is presently serving. 3. Subsequently, the Petitioner approached this Court by way of Nyamira Criminal Petition E090 of 2024, seeking re-sentencing and it was dismissed, the Court declining jurisdiction to revisit a sentence imposed by the Court of Appeal. 4. The present Petition raises, in substance, the same grievance and seeks the same relief previously declined. It invites this Court to re-open sentencing notwithstanding a final determination by the Court of Appeal and a prior rejection of re-sentencing by this Court. 5. The Respondent opposed the Petition on the ground that the Court is functus officio. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/785/eng@2026-01-21 1
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6. It is trite that this Court’s jurisdiction does not extend to the review, variation, or re-sentencing of a sentence imposed by the Court of Appeal. The High Court exercises neither supervisory nor appellate authority over a superior court of record and cannot sit in judgment over its decisions. 7. Once the Court of Appeal pronounced itself on sentence, and this Court subsequently declined resentencing in Nyamira Criminal Petition E090 of 2024, the matter was conclusively settled. This Court is functus officio. 8. In my considered view, the present Application amounts to a collateral and repetitive attempt to relitigate an issue already finally determined. The invocation of the same jurisprudential basis previously rejected does not clothe this Court with jurisdiction and constitutes an abuse of the court process and ofiends the principle of finality in litigation. Disposition 9. For the foregoing reasons, the Court finds that: 1. It lacks jurisdiction to entertain the application 2. The Petition is an abuse of the court process 3. The Petition is dismissed DELIVERED AT NYAMIRA THIS 21ST DAY OF JANUARY, 2026. WAMAE.T. W. CHERERE JUDGE Appearances; Court Assistant - Hilda. Petitioner - Present. For the DPP - Mr. Chirchir (SADPP). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/785/eng@2026-01-21 2
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