[2024] KEHC 13245 (KLR)
The High Court had already exercised its discretion and resentenced the applicant from life imprisonment to 50 years on appeal. The applicant's attempt to seek further revision from the same court is procedurally improper, as the court is functus officio and cannot sit on appeal over its own decision. The proper...
Source-derived case information.
- Citation
- [2024] KEHC 13245 (KLR)
- Parties
- Applicant: Julius Odongo Andere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 123 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- DK Kemei
- Legal Topics
- Sentence Revision, Functus Officio, Sexual Offences, Defilement, Criminal Appeal, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Odongo Andere
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to revise its own sentence after having already resentenced the applicant on appeal.
- 2 Whether the application for further revision is competent in light of the doctrine of functus officio.
Ratio Decidendi
The High Court had already exercised its discretion and resentenced the applicant from life imprisonment to 50 years on appeal. The applicant's attempt to seek further revision from the same court is procedurally improper, as the court is functus officio and cannot sit on appeal over its own decision. The proper recourse for the applicant, if aggrieved, would be to appeal to the Court of Appeal. The application is therefore incompetent and without merit.
Court Disposition
application dismissed
Orders
- The application dated 18/7/2023 is dismissed for lack of merit.
Full Case Text
Judgment text and source record
21 paragraphs
Andere v Republic (Miscellaneous Criminal Application 123 of 2023) [2024] KEHC 13245 (KLR) (31 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13245 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 123 of 2023
DK Kemei, J
October 31, 2024
Between
Julius Odongo Andere
Applicant
and
Republic
Respondent
Ruling
1. The applicant, Julius Odongo Andere, has filed this application dated 18/7/2023 before the court on 4/8/2023 brought under Article 22 (1) (3), 24 (1) (e), 50(2)(9),159(a)(b)(d), 165 (a) and Section 333 (2), 26(2) and 329 of the Criminal Procedure Code. It seeks that this court reverses its own orders.
2. In the affidavit in support of this application, the applicant deposes that he was charged, tried and convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. That he appealed to the HighCourt vide Criminal Appeal No. 43 of 2019 wherein his life sentence was reduced to 50 years imprisonment on appeal. That he now applies for revision of the same on grounds that he is a first offender and that he has reformed.
3. The Respondent has not made any substantive submissions or response to the application by the applicant.
4. I have considered this application and the averments of the applicant as contained in the affidavit in support of the application. I have also considered the record of proceedings regarding this matter. I find the only issue for determination is whether the application has merit.
5. In the judgment of this court delivered on 5/5/2020, the Hon. Judge noted;“In conclusion, I find and hold that the appellant’s appeal against conviction is devoid of merit. The same is dismissed. As against sentence, albeit lawful sentence was imposed, on the strength of Jared Injira Koita (supra) decision, I exercise discretion and resentence the appellant to serve fifty (50) years imprisonment….”In view of the above finding, it is clear that the High Court already substantively dealt with the issue of sentence of the applicant. By seeking further revision from this court, the applicant is asking this court to sit on appeal on its own decision. For avoidance of doubt, this court is functus officio in this matter. There is no reason advanced as to why the Applicant has opted not to proceed to the Court of Appeal if aggrieved by the decision of this court made on 5th May, 2020. I find the Applicant’s conduct is akin to playing lottery with the courts which should be discouraged.
6. In view of the foregoing observations, it is my finding that the applicant’s application dated 18/7/2023 is incompetent and lacks merit. The same is dismissed.
DATED AND DELIVERED AT SIAYA THIS 31STDAY OF OCTOBER, 2024D. KEMEIJUDGEIn the presence of:Julius Odongo Andere ApplicantM/s Kerubo for RespondentOgendo Court Assistant