Francis Juma Oduor & Another v Republic

[2017 eKLR(‘Muruatetu’).They have now moved this Court by way of undated Notice of Motion seeking a review of their Page 2 of 9

page 2 of 14

sentences. The Applicants now seek a review of their sentences in light of the new jurisprudence arising from the Muruatetu case. 2. The High Court, as the court of first instance, exercised its discretion and sentenced the Applicants to custodial terms. Dissatisfied, with the judgment the applicants appealed to this Court. In dismissing the appeal, the Court, applying the then-prevailing legal regime which treated the death penalty as a mandatory sentence for the offence of murder found the sentences passed by the trial court illegal and enhanced the sentences to death. The applicants approached the High Court for re-sentencing following the Supreme Court's declaration in the Muruatetu case that the nature of the mandatory death penalty was unconstitutional. However, their petition was declined on the basis that the High Court lacked jurisdiction to interfere with a sentence that had been specifically enhanced by the Court of Appeal. Consequently, the appellants were left in a limbo the High Court having declined their prayers, necessitating the application before us. Page 3 of 9

page 3 of 14

3. They submit that following the Muruatetu decision, the mandatory nature of the death sentence is no longer tenable and the sentencing framework for murder has fundamentally changed. They point to Article 50(2)(p) of the Constitution, which entitles a convicted person to the benefit of the least severe prescribed punishment where the law has changed between the time of the offence and sentencing. They pray that this Court reviews their sentences and, at the very least, restores them to the original custodial sentences imposed by the High Court. During the hearing on 12th May 2026, the Applicants, who appeared virtually from Kibos Maximum Security Prison, confirmed that they had filed written submissions which they relied on, urging the Court to reconsider the duration of their imprisonment in light of the prevailing legal framework. 4. The Respondent, through Ms. Sarah Ogweno, Learned Senior Assistant Director of Public Prosecutions opposed the application on two principal grounds. First, it was submitted that this Court lacks jurisdiction to review a sentence that it itself imposed and enhanced. Counsel relied on Article 50(2)(p) and (q) of the Constitution, Page 4 of 9

page 4 of 14

arguing that any review Page 5 of 9

page 5 of 14

by a higher court must, by definition, be before a court hierarchically superior to this Court. Second, it was submitted that this Court is functus officio having delivered its judgment enhancing the sentences, it has exhausted its jurisdiction in the matter. Counsel relied on Raila Odinga & 2 Others vs. IEBC & 3 Others [2013] eKLR, for the proposition that a court that has performed all its duties in a particular case cannot revisit its own decision, save for the correction of clerical errors. It was argued that the applicants had not demonstrated any such error and that the doctrine of functus officio serves the important purpose of providing finality to judicial proceedings. Counsel therefore submitted that the proper forum for any challenge would be the Supreme Court, that the application lacked merit and ought to be dismissed. 5. From the foregoing, two issues arise for determination: first, whether this Court is functus officio and therefore lacks jurisdiction to review its own decision; and second, whether, in light of Muruatetu decision, the Applicants are entitled to the benefit of a re-view on sentence.. Page 6 of 9

page 6 of 14

6. On the first issue, the doctrine of functus officio is a wellestablished principle of law that serves the important purpose of bringing finality to judicial proceedings. As this Court stated in National Bank of Kenya Ltd vs. Anupinder Singh Sandhu (t/a Sandhu & Sandhu Advocates ) [2019] eKLR, the doctrine dictates that once a court has rendered its final decision in a matter, it cannot revisit that decision except to correct clerical errors or accidental omissions. We acknowledge the importance of this doctrine. However, like all legal principles, it is not absolute. It must yield to higher constitutional imperatives where the application of the doctrine would result in a manifest injustice or where the legal basis upon which a decision was founded has been subsequently invalidated by a superior court. 7. In Raila Odinga vs. IEBC (supra), cited by the Respondent, the Supreme Court recognized exceptions to the doctrine, noting that it does not prevent a court from correcting errors and that proceedings are only fully concluded when a judgment or order has been perfected. The critical question is whether the sentence imposed by Page 7 of 9

page 7 of 14

this Court remains legally tenable in light of development in jurisprudence Page 8 of 9

page 8 of 14

relating to the death sentence. It is our considered view that 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. 8. Regarding the jurisdiction to review, Rule 1(1 ) of the Court of Appeal Rules gives this court inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of court as was held in the case of Amalgamated Ltd & another V Kenya Commercial Bank Ltd[2014]KECA 872(KLR). This position was affirmed by the Supreme Court in Fredrick Otieno Outa v Jared Odoyo Okello [2021] eKLR, where it was held that the Court of Appeal retains inherent jurisdiction to review its own orders in exceptional circumstances to prevent a failure of justice, and that the doctrine of functus officio is not an absolute bar to such review. 9. The respondent in its submissions argued that an enhancement of the sentence by this Court raised the Page 9 of 9

page 9 of 14

matter to a different level, and that challenges to appellate decisions ought, in the ordinary course, be taken to a higher court. Page 10 of 9

page 10 of 14

This is not a challenge to the decision of this Court. But rather the applicants seek to benefit from the now existing jurisprudence on the punishment on death sentences arising from the decision in the Muruatetu case. 10. Clearly the Supreme Court may not have envisaged an issue such as this which in our view is indeed novel. We therefore are of the view that this Court has both the jurisdiction and the duty, in the exceptional circumstances of this case, to consider the matter and make appropriate orders. The application does not seek a re-opening of the entire appeal or a challenge to the conviction. The application is a narrow, focused on the issue of sentence necessitated by a fundamental change in the sentencing regime. 11.On the second issue, Article 50(2)(p) of the Constitution provides that every accused person has the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for that offence has been changed between the time that the offence was committed and the time of sentencing. While this provision speaks directly to the period between the commission of the offence and sentencing, the principle it Page 11 of 9

page 11 of 14

embodies that a Page 12 of 9

page 12 of 14

change in the law favouring an accused person should benefit that person is equally applicable by analogy to the present situation. The Supreme Court in Muruatetu expressly stated that its declaration of unconstitutionality should benefit all persons sentenced to death under the mandatory regime. This was subsequently reaffirmed by the Supreme Court in its 2021 Directions issued in Francis Karioko Muruatetu & Another vs. Republic [2021] eKLR, which clarified that the benefit of that declaration extends retrospectively to all similar cases, regardless of whether the appeals of the affected persons were pending or concluded at the time. 12.Guided by the Supreme Court's directive that a change in law should benefit the applicant and the principle of proportionality, we find that determinate custodial sentences are appropriate. From the foregoing, we allow this application to the extent that: a. The sentences of death (commuted to life imprisonment) imposed by this Court on 29th July 2016 are hereby set aside. b. The sentences imposed by the trial Court do hereby revert in that; Page 13 of 9

page 13 of 14

i. Francis Juma Oduor (1st Applicant) is sentenced to fifty (50) years imprisonment, to run from the date of his arrest. ii. John Nyongesa Oduor (2nd Applicant) is sentenced to Forty (40) years imprisonment, to run from the date of his arrest. Order accordingly. RULING DATED and DELIVERED at KAKAMEGA this 25th day of September 2026. ALI-ARONI ................................... JUDGE OF APPEAL R. NGETICH .................................. JUDGE OF APPEAL RADIDO S. OKIYO .................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 14 of 9

page 14 of 14