REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT HOMA BAY CRIMINAL MISC. APPLICATION NO. E072 OF 2024 RENNY AKUMU …………..APPLICANT OMONDI……………….………. VERSUS REPUBLIC…………………………………….…….………… RESPONDENT RULING [1] The Notice of Motion dated 27th August 2024 was filed herein by the applicant, Renny Akumu Omondi. He prayed that the Court be pleased to exercise its discretionary powers to pronounce the lease severe sentence as stipulated by the law. He relied on his Supporting Affidavit sworn on 21 st August 2024 in which he averred that he was charged with rape contrary to Section 3(1) and (3) of the Sexual Offences Act, No. 3 of 2006 and was sentenced to 15 years’ imprisonment, which he considered harsh and excessive. [2] The applicant further deposed that he is remorseful; and having been in prison for 10 years, he seeks the leniency of the Court for a lesser sentence. In his written submissions dated 27 th August 2024, he also mentioned that he had undergone counselling and training in respect of which he had been issued with certificates by Lamp and Light, Emmaus Bible Studies, Safari ya Mfungwa and Nuru Lutheran Media Ministries. He also averred that, as a result of the counselling received he had reformed his attitude and behavior. He added that he is proceeding with 1|Page HCCRAPPL. NO. E072 OF 2024 RULING
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vocational training to enable him earn a living upon release. He urged the court exercise its discretionary powers to pronounce a lenient sentence. [3] The applicant urged his application by way of written submissions in which he reiterated that he is remorseful and has undergone rehabilitation for the period of his incarceration. He submitted that the Court has the power to exercise discretion in the matter and to give him an opportunity to be reintegrated as a member of the society. [4] The respondent opposed the application and relied on the written submissions dated 20th February 2025. Counsel for the respondent pointed out that the Petitioner appealed his conviction and sentence at the High Court and Court of Appeal which were dismissed. Counsel pointed out that the applicant has relied on Article 50(2) of the Constitution which guarantees fair hearing. In the respondent’s submission, that provision basically ensures that due process is followed to avoid miscarriage of justice. The respondent also argued that the other provisions cited by the applicant, namely Articles 27 and 165(3) of the Constitution have no bearing to the application. It was therefore the submission of the respondent that the instant application is bad in law and ought to be dismissed. [5] The Court called for High Court Criminal Appeal Case No. 53 of 2017: Renny Omondi Akumu v Repubic for perusal and it is manifest therefrom that the applicant was arraigned before the lower court to answer to a charge of rape contrary to Section 2|Page HCCRAPPL. NO. E072 OF 2024 RULING
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3(1) as read with Section 3(3) of the Sexual Offences Act. The record further shows that, in the alternative, he was charged with indecent act with an adult contrary to Section 11A of the Sexual Offences Act; and that he denied the charges. That after a full trial the applicant was convicted and sentence to 15 years’ imprisonment. It was further ascertained that, being aggrieved by his conviction and sentence, the applicant filed High Court Criminal Appeal No. 53 of 2017; which appeal was dismissed on 28th February 2019. [6] If the applicant was dissatisfied with the decision of the High Court on appeal then his option was to file appeal to the Court of Appeal. Hence, the applicant should make peace with his sentence as this court lacks the jurisdiction to review the matter further. While I am aware that there have been instances where, having exhausted their right of appeal, inmates approached the court for reduction of sentence for purposes of Section 333 of the Criminal Procedure Code. One such instance is Jona & 87 others v Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) in which Hon. Odunga, J. (as he then was) held: “A holistic consideration of the above provisions clearly show that this court has the power to redress a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and one such violation is the denial or threat of denial of freedom without a just cause such as where the sentence that a person risks serving is in excess of the lawfully prescribed one by failing to comply with section 333(2) of the Criminal Procedure Code.” [7] It is noteworthy however that, in that instance, the inmates filed a constitutional petition and argued their matter as such. In this instance, the applicant has neither filed a constitutional 3|Page HCCRAPPL. NO. E072 OF 2024 RULING
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petition nor approached the Court under Section 333(3) of the Criminal Procedure Code. To entertain the application would be tantamount to this Court sitting on appeal in respect of the decision of a court of concurrent jurisdiction as the first appellate court. I therefore agree with the position taken in Daniel Otieno Oracha v Republic [2019] eKLR, that: “The law abhors the practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise”. [8] In the result, I find no merit in the applicant’s Notice of Motion dated 27th August 2024. The same is hereby dismissed. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF MAY 2026 ……………..……………………… HON. OLGA SEWE JUDGE 4|Page HCCRAPPL. NO. E072 OF 2024 RULING
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