Nyabate v Republic (Criminal Miscellaneous Application E013 of 2026) [2026] KEHC 6722 (KLR) (28 April 2026) (Ruling) Neutral citation: [2026] KEHC 6722 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E013 OF 2026 TW CHERERE, J APRIL 28, 2026 BETWEEN ROBERT MOMANYI NYABATE ........................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant has moved this Court by a Notice of Motion dated 29th December 2025 seeking sentence review and/or resentencing. The application is premised on the grounds set out therein and the supporting affidavit. In substance, the Applicant prays that this Court reduces his sentence and accords him the benefit of the least severe punishment on account of mitigation, rehabilitation and constitutional considerations. 2. The specific orders sought include reduction of sentence, a declaration that the sentence imposed is unconstitutional, and an order for resentencing in light of the Applicant’s mitigation. 3. The application is expressed to be brought under Articles 22, 23, 25(c), 27, 50(2)(p) and (q) of the Constitution, as well as sections 216, 329 and 333(2) of the Criminal Procedure Code. 4. The Respondent opposes the application on the ground that this Court is functus officio, the Applicant having exhausted the appellate process up to the Court of Appeal, which affirmed both conviction and sentence. 5. I have considered the application, the grounds relied upon and the Respondent’s objection and the sole issue for determination is whether this Court has jurisdiction to entertain the present application. 6. The record shows that the Applicant was tried, convicted and sentenced by the trial court for the ofience of robbery with violence. His appeal to the High Court was dismissed in Robert Momanyi Nyabate & another v Republic [2019] eKLR, where the conviction and sentence were upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6722/eng@2026-04-28 1
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7. The Applicant and his co-accused thereafter preferred a second appeal to the Court of Appeal, which was dismissed in Joseph Sereti Onsongo v Republic [2022] KECA 1181 (KLR), the Court affirming both conviction and sentence and thereby bringing the appellate process to a conclusion. 8. The doctrine of functus officio bars this Court from reopening or revisiting a matter once it has been finally determined through the appellate hierarchy. 9. The Applicant invokes constitutional provisions and sections of the Criminal Procedure Code relating to sentencing and revision. However, those provisions do not donate jurisdiction to this Court to reopen a matter conclusively determined on second appeal. 10. The right of appeal under Article 50(2)(q) was fully exercised and exhausted. Similarly, sections 216, 329 and 333(2) of the Criminal Procedure Code relate to sentencing at trial or lawful appellate intervention and cannot be invoked to defeat the finality of a decision of the Court of Appeal. 11. Entertaining the present application would amount to this Court sitting on appeal over the decision of the Court of Appeal, which is impermissible. 12. Accordingly, I find that this Court lacks jurisdiction to entertain the application dated 29th December 2025 and the same 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/2026/6722/eng@2026-04-28 2
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