REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA HCRMISCAPPL E058 OF 2025 BETWEEN ERNEST OTWORI MAOTOKE.................................................APPLICANT AND REPUBLIC................................................................................RE SPONDENT RULING 1. The Applicant, by the Notice of Motion dated 18th December 2025, seeks orders that the sentences imposed upon him in the three counts for which he was convicted be ordered to run concurrently instead of consecutively. He contends that the cumulative sentence of sixty (60) years' imprisonment is harsh and excessive and urges the Court to exercise leniency. 2. Mr. Chirchir, learned counsel for the Respondent, opposed the application on the ground that this Court is functus officio. He submitted that the Applicant's appeal against conviction and sentence had already been heard and determined by this Court, which consequently lacks jurisdiction to revisit the matter. 3. I have considered the application and the Respondent's response and the sole issue for determination is whether this Court has jurisdiction to entertain the present application.
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4. In Lusaka v Republic [2023] KECA 1071 (KLR), the Court of Appeal reaffirmed that once a court has finally determined an appeal, it becomes functus officio and lacks jurisdiction to revisit its decision except in the limited instances recognised by law, such as the correction of clerical or accidental errors. The Court further held that an application seeking a substantive review of a sentence after an appeal has been concluded is incompetent for want of jurisdiction. 5. The Applicant's appeal against conviction and sentence in Nyamira High Court Criminal Appeal No. E009 of 2023, Ernest Otwori Matoke v Republic was dismissed by this Court on 24th July 2025. Through the present application, he seeks to have the sentences ordered to run concurrently, thereby inviting the Court to revisit a sentence it has already upheld. 6. To grant the orders sought would require this Court to reopen and vary the sentence that it affirmed on appeal. As the Applicant has neither identified any clerical or accidental error nor demonstrated any statutory basis for reopening the concluded appellate judgment, this Court is functus officio. If he remains aggrieved by that judgment, his recourse lies before the Court of Appeal in accordance with the law.
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7. Consequently, the Notice of Motion dated 18 th December 2025 is incompetent and is hereby dismissed for want of jurisdiction. 8. If the Applicant remains aggrieved by this Court’s judgment, his recourse lies before the Court of Appeal in accordance with the law. DELIVERED AT NYAMIRA THIS July 2026 09th WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Applicant - Present For the DPP - Mr. Chirchir (SADPP) DAY OF
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