Nyamongo v Republic (Criminal Miscellaneous Application E019 of 2026) [2026] KEHC 6669 (KLR) (28 April 2026) (Ruling) Neutral citation: [2026] KEHC 6669 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E019 OF 2026 TW CHERERE, J APRIL 28, 2026 BETWEEN DAVID NGASURA NYAMONGO ......................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant has moved this Court by a Notice of Motion dated 29th December 2025 seeking orders that this Court reviews, reduces and/or suspends his sentence, or admits him to a non-custodial sentence. 2. The application is premised on the grounds set out therein, including that the Applicant has reformed, is of advanced age, suffers ill health, has served a substantial portion of the sentence, and is entitled to the benefit of the least severe punishment under the Constitution and the law. The application is brought under Articles 22, 23, 25(c), 27 and 50(2)(p) and (q) of the Constitution, and sections 216, 329 and 333(2) of the Criminal Procedure Code. 3. The Respondent opposes the application on the ground that this Court is functus oficio, the Applicant having exhausted the appellate process up to the Court of Appeal, which upheld both conviction and sentence. 4. I have considered the application, the grounds advanced and the Respondent’s objection and the sole issue for determination is whether this Court has jurisdiction to entertain the present application. 5. The record shows that the Applicant was tried and convicted by this Court for the offence of murder and sentenced to thirty (30) years imprisonment. Being dissatisfied, the Applicant appealed to the Court of Appeal in Criminal Appeal No. 37 of 2019, which appeal was dismissed and both conviction and sentence upheld in Nyamongo v Republic [2025] KECA 639 (KLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6669/eng@2026-04-28 1
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6. The doctrine of functus oficio therefore applies. Once a matter has been conclusively determined through the appellate process, this Court cannot reopen, review or vary the decision. This position has been consistently afirmed. In Nyamongo v Republic KEHC 12673 (KLR), the High Court sitting in Kisumu held that once the Court of Appeal has confirmed a sentence, the High Court is bereft of jurisdiction to interfere with that sentence and any such challenge lies only before the Court of Appeal. 7. The Applicant has invoked constitutional provisions and sections of the Criminal Procedure Code relating to sentencing and revision. However, those provisions do not confer jurisdiction upon this Court to reopen a matter conclusively determined on second appeal. 8. The right of appeal under Article 50(2)(q) was fully exercised and exhausted. The provisions of sections 216, 329 and 333(2) of the Criminal Procedure Code relate to sentencing at trial or during a lawful appeal and cannot be invoked to defeat the finality of a decision of the Court of Appeal. 9. It is also apparent from the record that the Applicant had filed a similar application seeking similar reliefs before this Court after the conclusion of his appeal. Such repeated applications, raising substantially the same issues, amount to an abuse of the court process and cannot be countenanced. Entertaining the present application would not only offend the doctrine of functus oficio but would also undermine the finality of litigation and the orderly administration of justice. 10. Accordingly, I find that this Court lacks jurisdiction to entertain the application dated 29th December 2025 and that the same is an abuse of the court process and it is hereby dismissed. DELIVERED AT NYAMIRA THIS 28TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Terer/Ruth Applicant - Present For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6669/eng@2026-04-28 2
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