[2024] KEHC 11525 (KLR)
The court held that it lacked jurisdiction to entertain the applicant's request for review or mitigation of sentence after the dismissal of his appeal. Once the appellate court has rendered its judgment, it becomes functus officio and cannot revisit the conviction or sentence. The application for leniency was...
Source-derived case information.
- Citation
- [2024] KEHC 11525 (KLR)
- Parties
- Applicant: Abdi Sigat Abdi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E019 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Post Appeal Mitigation Application
- Outcome
- application dismissed for want of jurisdiction; court functus officio
- Judges
- JN Onyiego
- Legal Topics
- Defilement, Sexual Offences Act, Sentencing Review, Functus Officio, Jurisdiction, Post Conviction Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Sigat Abdi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Post Appeal Mitigation Application
Legal Issues
- 1 Whether the High Court has jurisdiction to review or alter a sentence after dismissal of an appeal on the same conviction and sentence.
- 2 Whether the application for leniency constitutes an abuse of court process given the court's functus officio status.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the applicant's request for review or mitigation of sentence after the dismissal of his appeal. Once the appellate court has rendered its judgment, it becomes functus officio and cannot revisit the conviction or sentence. The application for leniency was therefore dismissed as the court had no legal authority to grant the relief sought.
Court Disposition
application dismissed for want of jurisdiction; court functus officio
Orders
- The application for review or mitigation of sentence is dismissed.
- No further orders are made.
Full Case Text
Judgment text and source record
26 paragraphs
Abdi v Republic (Miscellaneous Criminal Application E019 of 2024) [2024] KEHC 11525 (KLR) (30 September 2024) (Ruling)
Neutral citation: [2024] KEHC 11525 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E019 of 2024
JN Onyiego, J
September 30, 2024
Between
Abdi Sigat Abdi
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with the offence of defilement contrary to Section 8 (1) as read together with Section 8(4) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of this offence were that on diverse dates between 1st May to 29th May, 2020 at [Particulars withheld] Refugee Camp in Dadaab Sub-County within Garissa County, he unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of ZMH, a child aged 16 years.
3. In the alternative, the applicant was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of this count were that, on diverse dates between 1st May, 2020 to 29th May, 2020 at [Particulars withheld] Refugee Camp in Dadaab Sub-County within Dadaab County, he willfully and intentionally touched the genital organ namely vagina of NMH, a child aged 16 years with his genitals namely penis.
4. The applicant was convicted on the main charge and sentenced to serve fifteen (15) years imprisonment.
5. Aggrieved by the said conviction and sentence, he moved to this court vide Criminal Appeal No. E053 of 2022 challenging both conviction and sentence.
6. Through its judgment dated 17th May, 2024, Riechi J, dismissed the appeal in its entirety thus upholding both the conviction and sentence.
7. Undeterred, he came to this court once again vide what is referred to as the humble mitigation which is undated seeking court’s leniency on grounds that; he is suffering from epilepsy; he is a child to a single parent who is jobless; he has reformed having acquired carpentry skills which he needs to utilize at home and therefore should be set free or be given a non-custodial sentence.
8. During the hearing, he reiterated the content of his application. In response, prosecution opposed the application calling it an abuse of the court process as the court is functus officio.
9. I have considered the application herein and the objection thereof. There is no doubt that the applicant was convicted and sentenced to serve 15 years imprisonment. There is no doubt also that he appealed against the said conviction and sentence before this court and the same was dismissed.
10. According to Riechi J, the sentence imposed was commensurate and appropriate to the offence charged.
11. For the applicant to seek review of the same sentence it amounts to this court sitting on its own judgement on an appellate capacity. This court is therefore functus officio. Accordingly, I have no jurisdiction to hear this application. To that extent, the application is dismissed.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF SEPTEMBER 2024J. N. ONYIEGOJUDGE