Francis Juma Oduor & Another v Republic
The bottom line
#The Court of Appeal in Kakamega replaced two death sentences with 50- and 40-year prison terms, confirming that courts can revisit sentences invalidated by later legal changes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court is functus officio and therefore lacks jurisdiction to review its own decision
- 2.Whether, in light of the Muruatetu decision, the Applicants are entitled to the benefit of a review on sentence
Key legal issues
#Whether the Court of Appeal is functus officio after enhancing sentences to death
Functus officio is not an absolute bar; it yields to constitutional imperatives where the legal foundation of the decision has been invalidated or where maintaining it causes injustice.
The court acknowledged the doctrine's finality purpose as stated in National Bank of Kenya v Sandhu, but held that like all legal principles it is not absolute. Where the legal framework underpinning a sentence has been invalidated by a superior court, the doctrine cannot prevent a sentence review if maintaining the sentence causes injustice. The Supreme Court in Outa affirmed the Court of Appeal's inherent jurisdiction in exceptional circumstances.
Whether the applicants are entitled to re-sentencing under Article 50(2)(p) following Muruatetu
Yes; by analogy to Article 50(2)(p) and per the Muruatetu declaration and 2021 Directions, the applicants benefit from the changed sentencing regime and deserve determinate custodial sentences.
Article 50(2)(p) entitles an accused to the least severe prescribed punishment where the law changes between offence and sentencing. Though the provision speaks to the pre-sentencing period, its principle applies by analogy. Muruatetu declared the mandatory death penalty unconstitutional, and the Supreme Court's 2021 Directions extended that benefit retrospectively to concluded cases. Guided by proportionality, determinate custodial sentences were appropriate.
Legal principles established
#- The doctrine of functus officio is not absolute and must yield where the legal basis of a decision has been invalidated by a superior court or where maintaining the decision causes injustice.
- The Court of Appeal retains inherent jurisdiction to review its own orders in exceptional circumstances to prevent a failure of justice.
- The benefit of the Muruatetu declaration extends retrospectively to all persons sentenced under the mandatory death penalty regime, whether their appeals were pending or concluded.
Court orders
#- 1.The sentences of death (commuted to life imprisonment) imposed by this Court on 29th July 2016 are set aside
- 2.Francis Juma Oduor (1st Applicant) is sentenced to fifty (50) years imprisonment, to run from the date of his arrest
- 3.John Nyongesa Oduor (2nd Applicant) is sentenced to forty (40) years imprisonment, to run from the date of his arrest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Article 164(3)(a)(b) of the Constitution and Rule 3(1) of the Court of Appeal Rules; inherent power under Rule 1(1) of the Court of Appeal Rules
Relief refused
#Any re-opening of the entire appeal or challenge to the conviction
The application was narrow and focused only on sentence following the change in the sentencing regime
Costs
No costs order was made in the ruling.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where a sentence was imposed on the basis of a legal framework that has since been changed,the doctrine of functus officio cannot prevent a sentence review if maintaining it causes injustice.
the Court of Appeal retains inherent jurisdiction to review its own orders in exceptional circumstances to prevent a failure of justice
The sentences of death (commuted to life imprisonment) imposed by this Court on 29th July 2016 are hereby set aside.
Francis Juma Oduor (1st Applicant) is sentenced to fifty (50) years imprisonment, to run from the date of his arrest.
John Nyongesa Oduor (2nd Applicant) is sentenced to Forty (40) years imprisonment, to run from the date of his arrest.
Issues in the judgment
#Chronology conflict: appeal said to be filed in 2014 but enhanced sentences stated as imposed on 29th July 2016.
Rule cited for jurisdiction (Rule 1(1)) differs from the Rule invoked in the application (Rule 3(1)).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Juma Oduor & Another v Republic", Case Analysis (2026). Criminal Application No. E184 of 2026 (formerly Kisumu Criminal Appeal No. 95 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2032/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.