[2025] KEHC 521 (KLR)
The High Court found that it had already determined the applicant's appeal and that the applicant had further appealed to the Court of Appeal, which also dismissed his appeal. The court held that it was functus officio and therefore lacked jurisdiction to entertain the present petition for sentence revision. The...
Source-derived case information.
- Citation
- [2025] KEHC 521 (KLR)
- Parties
- Applicant: Paul Omondi Atieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 130 of 2023
- Procedural Posture
- Criminal Petition / Sentence Revision Application After Conviction and Dismissal of Appeals
- Outcome
- Petition dismissed for lack of merit; court functus officio.
- Judges
- DK Kemei
- Legal Topics
- Sentence Revision, Functus Officio, Defilement Offence, Sexual Offences Act, Probation Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Omondi Atieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Sentence Revision Application After Conviction and Dismissal of Appeals
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after having already determined his appeal and after the Court of Appeal has dismissed his further appeal.
- 2 Whether the principle of functus officio bars the High Court from entertaining the present petition for sentence revision.
Ratio Decidendi
The High Court found that it had already determined the applicant's appeal and that the applicant had further appealed to the Court of Appeal, which also dismissed his appeal. The court held that it was functus officio and therefore lacked jurisdiction to entertain the present petition for sentence revision. The principle of functus officio, as defined in legal dictionaries and established in law, precludes a court from revisiting a matter it has conclusively determined. The applicant's attempt to seek further review before the same court was improper and contrary to established legal procedure. Consequently, the petition lacked merit and was dismissed.
Court Disposition
Petition dismissed for lack of merit; court functus officio.
Orders
- The petition for sentence revision is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
Atieno v Republic (Criminal Petition 130 of 2023) [2025] KEHC 521 (KLR) (27 January 2025) (Ruling)
Neutral citation: [2025] KEHC 521 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Petition 130 of 2023
DK Kemei, J
January 27, 2025
Between
Paul Omondi Atieno
Applicant
and
Republic
Respondent
Ruling
1. The Petitioner herein Paul Omondi Atieno is a convict for the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act of 2006. He was convicted and sentenced to serve 25 years imprisonment vide Bondo CM’s Criminal Case No. 174/2014.
2. The petition is supported by grounds on the face thereof and by a supporting affidavit sworn by the Petitioner. The grounds are inter alia; that upon being aggrieved by the conviction and sentence of the lower court, he moved to the High Court vide Siaya HCCRA 141/2013 which was dismissed; that he as well lodged an appeal before the Court of Appeal vide Kisumu C.O.A No. 36/2015 and which was dismissed as well.The Petitioner avers inter alia; that he be considered for sentence review to a lesser one; that while in prison, he underwent through formal education where he attained a KCSE Certificate of D+ with 27 points; that the prison has helped him shape his future as he is now reformed and prays to be given a second chance. That he merits to be placed under probation.
3. The Respondent’s counsel left the matter to the Court to make a determination.
4. I have considered the Petitioner’s petition and the supporting affidavit thereof. Indeed, the Petitioner seeks for revision of sentence and it is worth noting that this court had earlier on made a determination on a similar application. As this court had dealt with the earlier appeal case and that the Applicant has since moved to the Court of Appeal, it cannot again sit on its own appeal and purport to determine the latest petition owing to the principle of functus officio. The conduct in coming back to this court yet it has already determined his appeal must be frowned upon.The term “functus” is defined at page 840 of Jowitts Dictionary of English Law 2010 Edition as: -“functus officio (having discharged its duty), an expression applicable to a Judge, magistrate or arbitrator who has given a decision made an order of award so that his authority is exhausted.”
5. In light of the foregoing, it is my finding that the Petitioner’s application lacks merit. The same is dismissed.
DATED AND DELIVERED AT SIAYA HIGH COURT THIS 27THDAY OF JANUARY, 2025. D. KEMEIJUDGEIn the presence of:Paul Omondi Otieno………...ApplicantM/s Mumu……………...for RespondentOgendo……………………Court Assistant