Nyakundi v Republic (Criminal Miscellaneous Application E021 of 2026) [2026] KEHC 6713 (KLR) (28 April 2026) (Ruling) Neutral citation: [2026] KEHC 6713 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E021 OF 2026 TW CHERERE, J APRIL 28, 2026 BETWEEN BERNARD OKEMWA NYAKUNDI ..................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant has moved this Court by a Notice of Motion dated 27th March 2026 seeking sentence review and/or resentencing. The application is premised on the grounds set out therein and the supporting affidavit. In essence, the Applicant urges the Court to reconsider the sentence of twenty (20) years’ imprisonment imposed upon him for the offence of murder on account of mitigation, rehabilitation and the period already served. 2. The application is expressed to be brought under the Constitution and the law, including Articles 22, 23, 50(2)(q) and 165 of the Constitution, and the provisions of the Criminal Procedure Code relating to revision and the inherent powers of the Court. 3. The Respondent opposes the application on the ground that this Court is functus officio, the Applicant’s conviction and sentence having been upheld by the Court of Appeal. It is contended that this Court lacks jurisdiction to revisit or vary a matter conclusively determined on second appeal. 4. I have considered the application, the grounds relied upon and the response thereto and the sole issue for determination is whether this Court has jurisdiction to entertain the present application. 5. It is not in dispute that the Applicant was tried, convicted and sentenced by the High Court, and that both conviction and sentence were subsequently affirmed by the Court of Appeal in Benard Okemwa Nyakundi v Republic KECA 187 (KLR), thereby bringing the appellate process to an end. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6713/eng@2026-04-28 1
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6. The effect of that determination is that the decision of the Court of Appeal is final and binding. The doctrine of functus officio bars a court from reopening or revisiting a matter once it has rendered a final decision. 7. This Court has no jurisdiction to interrogate, review, vary or in any manner interfere with a decision of the Court of Appeal. To do so would amount to this Court sitting on appeal over a superior court, which is impermissible. 8. While the Applicant invokes Articles 22, 23, 50(2)(q) and 165 of the Constitution, as well as the revisionary jurisdiction under the Criminal Procedure Code, those provisions do not donate jurisdiction to this Court to reopen a matter conclusively determined on second appeal. The right of appeal under Article 50(2)(q) was fully exhausted, and the revisionary powers of this Court cannot be invoked to defeat the finality of a decision of the Court of Appeal. 9. Accordingly, I find that this Court lacks jurisdiction to entertain the application dated 27th March 2026 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/2026/6713/eng@2026-04-28 2
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