[2024] KEHC 7134 (KLR)
The High Court found that it was functus officio in this matter, as the applicant's sentence had already been reviewed and upheld by a court of concurrent jurisdiction (the High Court on appeal). The issues raised in the present application had been conclusively determined in the previous appeal, where the sentence...
Source-derived case information.
- Citation
- [2024] KEHC 7134 (KLR)
- Parties
- Applicant: Samwel Ondeng Apiyo; Respondent: State
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 141 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Application After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentence Review, Defilement Offence, Functus Officio, Repeat Offender, Community Service Orders, Probation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Ondeng Apiyo
Applicant
State
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Application After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after an appeal has already been determined.
- 2 Whether the principle of functus officio applies to bar the court from entertaining the application for sentence review.
Ratio Decidendi
The High Court found that it was functus officio in this matter, as the applicant's sentence had already been reviewed and upheld by a court of concurrent jurisdiction (the High Court on appeal). The issues raised in the present application had been conclusively determined in the previous appeal, where the sentence was found appropriate given the applicant's status as a repeat offender and the gravity of the offence. Consequently, the court lacked jurisdiction to entertain a further review of the sentence, and the application was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed in its entirety.
- The sentence of 20 years imprisonment imposed by the trial magistrate is upheld.
Full Case Text
Judgment text and source record
21 paragraphs
Apiyo v State (Miscellaneous Criminal Application 141 of 2023) [2024] KEHC 7134 (KLR) (13 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7134 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 141 of 2023
DO Ogembo, J
June 13, 2024
Between
Samwel Ondeng Apiyo
Applicant
and
State
Respondent
(Being an Application for Sentence Review from Sentence in the PM’s at Bondo in Sexual Offence Case No. 40 of 2017 delivered on 8th August 2018 by E. N. Wasike, SRM)
Ruling
1. The Applicant herein, Samwel Ondeng Apiyo has applied to this court by a Notice of Motion application dated 3/9/2023 that this court reviews his sentence. He has pleaded that he is a first offender and urges the court to revise his sentence. He has pleaded that he is a first offender and urges the court to revise his sentence and place him on community service orders or on probation.
2. The prosecution have opposed this application on grounds that this court is functus officio in this matter.
3. I have considered this application and the record of proceedings regarding this case. I have noted that the applicant was sentenced to serve 20 years for the offence of defilement in Bondo PM’s Court S.O. No. 40 of 2017. He thereafter appealed against the sentence in HCCR Appeal No. 39/2018, Siaya. The Hon. Justice Aburili dismissed the Appeal in a judgment dated 18/11/2019. In dismissing the applicant’s appeal on sentence, the Hon. Judge, observed:“I have considered the above circumstances of the offence and the fact that the appellant is a repeat offender. In my humble view, the sentence imposed was appropriate. The appellant must be kept away from society long enough for him to learn his lesson and protect children from being preyed upon by him.”
4. I find no reason to interfere with the sentence of 20 years imprisonment imposed on appellant by the trial magistrate. I decline to interfere and uphold it.”
5. Clearly, the orders that the applicant seeks vide this present application have been dealt with by a court of concurrent jurisdiction. To that extent, this court is functus officio in this matter. I decline this application and dismiss it wholly.
Dated, Signed and Delivered this 13th Day of June, 2024. D. O. OGEMBOJUDGE13/6/2024CourtPARA 6. Ruling read out in presence of applicant (Naivasha Prison) and Ms. Kerubo for State.D.O. OGEMBOJUDGE13/6/2024SIAYA HC MISC. CRIMINAL APPLICATION NO. 141 OF 2023 RULING 1 | Page