[2021] KEHC 6439 (KLR)
The court found that the applicant had previously filed Petition No. 24 of 2020, seeking review of his sentence to take into account the time spent in custody under section 333(2) of the Criminal Procedure Code. That petition was heard and dismissed on its merits. The court held that the current application raised...
Source-derived case information.
- Citation
- [2021] KEHC 6439 (KLR)
- Parties
- Applicant: Daniel Mbeke Mwilu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E002 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed for want of jurisdiction (res judicata)
- Judges
- LM Njuguna
- Legal Topics
- Sentence Computation, Time Spent in Custody, Res Judicata, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mbeke Mwilu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the court has jurisdiction to entertain the application in light of a previous petition on the same issue.
- 2 Whether the principle of res judicata applies to the applicant's request for sentence computation under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicant had previously filed Petition No. 24 of 2020, seeking review of his sentence to take into account the time spent in custody under section 333(2) of the Criminal Procedure Code. That petition was heard and dismissed on its merits. The court held that the current application raised the same issue already determined by a court of competent jurisdiction, thus invoking the doctrine of res judicata. Consequently, the court lacked jurisdiction to entertain the application and was compelled to dismiss it, as it could not proceed with a matter over which it had no jurisdiction.
Court Disposition
application dismissed for want of jurisdiction (res judicata)
Orders
- The application by the applicant is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APPLICATION NO. E002 OF 2021
DANIEL MBEKE MWILU..............................APPLICANT
VERSUS
REPUBLIC...................................................RESPONDENT
RULING
1. Before this court is an application dated 25. 01. 2021 and wherein the applicant seeks consideration of the time he spent in custody pursuant to Section 333(2) of the Criminal Procedure Code.
2. The petitioner’s case is that he was convicted of the offence of murder contrary to section 203 as read together with section 204 of the Penal Code in Embu High Court Criminal Case No. 10 of 2016 and sentenced to 13 years imprisonment on 4. 12. 2019. That he was arrested and put in custody on 10. 06. 2016. He thus seeks the court’s intervention in sentence computation in compliance with section 333(2) of the Criminal Procedure Code.
3. The applicant filed written submissions wherein he reiterated the contents of the application herein. He further submitted that the trial court did not positively show how it considered the time spent in custody so as to arrive at the sentence of 13 years imprisonment. Reliance was made on the case of Stephen Mutuku & 2 others –vs- Republic in consolidated Criminal Appeal No. 23 of 2020 and No. 24 of 2020, Ahmed Abolfathi Mohammed & Another –vs- Republic (2018) eKLR and Bethwel Wilson Kibo –vs- Republic (2009) eKLR.
4. At the hearing of the application, Ms. Mate for the respondent in opposing the application herein submitted that the applicant had been heard in a similar petition being Petition No. 24 of 2020. The applicant in response admitted having filed another application seeking similar orders.
5. I have considered the application herein, the oral submissions made before this court by the parties and the applicant’s written submissions.
6. However, Ms. Mati submitted that the applicant had filed an earlier petition which was heard and determined. The applicant indeed confirmed the same. The prosecution as such appears to raise and seeks to rely on res judicataprinciple. The same being a jurisdictional issue, it ought to be determined in limineas a court of law can only exercise jurisdiction as conferred by the constitution or other written law and where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.
7. I have perused the court record and I have noted that indeed the applicant herein filed a petition on 14. 02. 2020 being Petition No. 24 of 2020 and wherein he essentially sought review of his sentence so as the court takes into consideration the time he had spent in custody pursuant to section 333(2) of the Criminal Procedure Code. However, in a judgment delivered on 1. 10. 2020 by Hon. A Mshila J, dismissed the said petition.
8. The issue before this court having been an issue before another court and having been determined on merit by that court, it is my considered view that the same is res judicataand as such this court has no jurisdiction over the same. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and the court ought to down its tools in respect of the matter before it the moment it holds the view that it is without jurisdiction. (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).
9. It is my considered view that this court being bereft of jurisdiction ought to down its tools. As such the application by the applicant herein is dismissed.
10. It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF JUNE 2021
L. NJUGUNA
JUDGE
..............................................for the Applicant
..............................................for the Respondent