REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA (CHERERE-J) HCCRPET E003 OF 2025 BETWEEN MOTEGO OKEYO ORINA.......................................................PETITIONER AND REPUBLIC........................................................................ ..........RESPONDENT RULING 1. Before this Court is the undated Notice of Motion filed by the Petitioner seeking rehearing and resentencing in respect of the life sentence imposed upon him following his conviction for the offence of defilement. 2. The application is supported by the affidavit sworn by the Petitioner in which he depones that he was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment. He urges the Court to reconsider the sentence imposed upon him on the basis of constitutional principles and his rehabilitation while in prison.
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3. The Petitioner further avers that while in custody he has undergone rehabilitation and participated in various educational and religious programmes. In support thereof, he annexed several certificates and commendation letters issued during his incarceration. 4. The Respondent opposed the application and submitted that this Court is functus officio having already heard and determined the appeal arising from the Petitioner’s conviction and sentence and that the matter was subsequently conclusively determined by the Court of Appeal. 5. I have considered the application, the affidavit in support and the material placed before the Court. The issue arising for determination is whether the application is competent 6. The record before this Court shows that the Petitioner’s conviction and sentence were previously challenged before the High Court in Nyamira HCCR Appeal No. 53 of 2016 and thereafter before the Court of Appeal at Kisumu in MOO v Republic [2025] KECA 1444 (KLR). In the said judgment, the Court of Appeal affirmed both the conviction and the sentence of life imprisonment imposed upon the Petitioner. At paragraph 31 of the judgment in MOO v Republic (supra), the Court of Appeal held as follows:
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“In the ultimate, we are satisfied that the appeal is devoid of merit and is accordingly dismissed in its entirety.” 7. The doctrine of functus officio bars a court from revisiting a matter once it has conclusively determined the same. In Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR, the Court of Appeal stated that the principle is intended to bring finality to litigation and prevents a court from reopening matters that have already been conclusively determined. 8. Similarly, in Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court held that once a court renders a final decision, it becomes functus officio except as provided by law. 9. Having heard and determined the appeal arising from the Petitioner’s conviction and sentence, and the matter having subsequently been conclusively determined by the Court of Appeal in MOO v Republic (supra), this Court became functus officio and lacks jurisdiction to reopen or reconsider issues relating to the Petitioner’s conviction and sentence. 10. Further, although the Petitioner invokes constitutional provisions and seeks resentencing, the Supreme Court in
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Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR clarified that the decision in Muruatetu applies only to the mandatory death sentence in murder cases and does not automatically extend to sentences imposed under the Sexual Offences Act. 11. Accordingly, this Court lacks jurisdiction to reopen or reconsider the sentence imposed upon the Petitioner. 12. The Court has nonetheless considered the certificates and commendation letters annexed by the Petitioner showing efforts towards rehabilitation while in prison. While commendable, such matters cannot confer jurisdiction upon the Court where none exists. 13. In the result, the Court finds that the undated Notice of Motion is incompetent and devoid of merit. The same is hereby dismissed. DELIVERED AT NYAMIRA THIS May 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita Petitioner - Present 06th DAY OF
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For the DPP - Mr. Chirchir (SADPP)
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