[2020] KEHC 5157 (KLR)
The High Court lacks jurisdiction to entertain or revise a sentence after the Court of Appeal has made a determination on the same matter. The doctrine of functus officio applies, rendering the High Court powerless to revisit or alter the sentence imposed by the appellate court. Any further recourse for the...
Source-derived case information.
- Citation
- [2020] KEHC 5157 (KLR)
- Parties
- Applicant: Charles Njonjo Gituro; Respondent: Republic (Director of Public Prosecution)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 241 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Retrial or Resentencing After Appeal
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Jurisdiction of High Court, Resentencing After Appeal, Functus Officio, Revision of Sentence, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Njonjo Gituro
Applicant
Republic (Director of Public Prosecution)
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Retrial or Resentencing After Appeal
Legal Issues
- 1 Does the High Court have jurisdiction to entertain an application for resentencing after the Court of Appeal has already determined the sentence?
- 2 Can the High Court revise or revisit a sentence imposed by the Court of Appeal under section 333(2) of the Criminal Procedure Code?
Ratio Decidendi
The High Court lacks jurisdiction to entertain or revise a sentence after the Court of Appeal has made a determination on the same matter. The doctrine of functus officio applies, rendering the High Court powerless to revisit or alter the sentence imposed by the appellate court. Any further recourse for the applicant lies with the Supreme Court, not the High Court. Therefore, the application for retrial or resentencing is dismissed in its entirety as the court would be acting beyond its jurisdiction if it were to grant the orders sought.
Court Disposition
application dismissed
Orders
- The application dated 17.4.2019 is wholly dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT MILIMANI LAW COURTS
CRIMINAL DIVISION
MISCELLANEOUS CRIMINAL APPLICATION NO 241 OF 2019
CHARLES NJONJO GITURO..........................APPLICANT
VERSUS
REPUBLIC........DIRECTOR OF PUBLIC PROSECUTION
RULING
The applicant herein CHARLES NJONJO GITURO, has filed this application dated 17. 4.2019 seeking that he be allowed for retrial for resentencing. In his submissions, he asked that the court do consider the period he has spent in custody. He confirmed that he had, pursuant to the initial trial, been sentenced to death for the offence of murder. That upon making an appeal to the Court of Appeal, his conviction was upheld but his sentence was so reduced to 20 years imprisonment term.
In opposing the application, Mr. Mutuma, for the state, submitted that this court is functus officio in this matter and so has no jurisdiction to entertain this application. That the Court of Appeal, having passed the sentence, this court cannot again interfere with the same. That his only recourse is to move to the Supreme court.
I have considered the submissions of both the applicant and the side of the state. There is no doubt that following the appeal filed at the Court of Appeal against the Death sentence meted out by this court, the Court of Appeal indeed reduced his sentence from Death sentence to an imprisonment term of 20 years. I have indeed seen the judgment of the Court of Appeal in Criminal Appeal No. 512/2010, Charles Njonjo Gituro Versus Republic. The same is dated 22. 3.2019. The applicant having moved to the Court of Appeal and canvassed his case before the Superior court, and the court having pronounced itself on the issue of sentence, I am persuaded by the submissions of counsel for the state that this court cannot now handle, entertain and or revisit this matter at all. And particularly on this issue of sentence..
I am in this regard persuaded by the finding of the Hon. Justice G. Ngenye in Bernard Munyao Ndunge Versus Republic (2020)eKLR, that the High Court ceases to have jurisdiction on a matter on which the Court of Appeal had made a finding. It would therefore be improper for this court to invoke and make any orders of revision of the sentence under section 333(2) of the Criminal Procedure Code. The court would be acting beyond its jurisdiction.
It is for this reason that I decline to grant orders prayed for in the applicant’s applicant dated 17. 4.2020. I dismiss the same wholly.
D. O. OGEMBO
JUDGE
5. 6.2020
Court:
Ruling read out in open court in the presence of Ms. Kibathi for the state and the applicant.
D. O. OGEMBO
JUDGE
5. 6.2020