[2022] KEHC 1703 (KLR)
The High Court found that it lacked jurisdiction to entertain and determine the review application because the issue of sentence had already been conclusively determined by Kimaru, J in the consolidated criminal appeals. The court held that it was functus officio and could not revisit the sentence. The only remedy...
Source-derived case information.
- Citation
- [2022] KEHC 1703 (KLR)
- Parties
- Applicant: David Chimboma Wachira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 413 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Review Application
- Outcome
- application dismissed for want of jurisdiction
- Legal Topics
- Review Jurisdiction, Functus Officio, Sentencing Review, Pre Trial Custody, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Chimboma Wachira
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Review Application
Legal Issues
- 1 Whether the High Court has jurisdiction to review the sentence imposed by Kimaru, J after the appeal was determined.
- 2 Whether the period spent in pre-trial custody should be considered in the applicant's sentence under Section 333(2) of the Criminal Procedure Code.
- 3 Whether the doctrine of functus officio applies to bar the court from entertaining the review application.
Ratio Decidendi
The High Court found that it lacked jurisdiction to entertain and determine the review application because the issue of sentence had already been conclusively determined by Kimaru, J in the consolidated criminal appeals. The court held that it was functus officio and could not revisit the sentence. The only remedy available to the applicant was to appeal to the Court of Appeal. Consequently, the application was found to be incompetent and was dismissed.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application is incompetent and is hereby dismissed.
- Right of appeal explained to the applicant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CRIMINAL APPLICATION NO. 413 OF 2021
DAVID CHIMBOMA WACHIRA...............................................APPLICANT
VERSUS
REPUBLIC...............................................................................RESPONDENT
RULING AND ORDER
The applicant was convicted and sentenced to death in the trial court on a charge of robbery with violence. His appeal to the High Court was successful in that his sentence of death was quashed.
In its place this court (Kimaru, J) on 01/7/2020 in Nairobi High Court Criminal Appeal Nos. 215 of 2019 and 153 of 2017, consolidated, imposed a sentence of five years imprisonment.
The applicant has orally submitted in this court that this court has jurisdiction to hear and determine his review application.
He has also submitted that the period of three years in which he was in pre-trial custody was not taken into account in terms of Section. 333(2) Criminal Procedure Code [Cap. 75] Laws of Kenya.
Ms Joy for the respondent has opposed the application on the basis that this court does not have jurisdiction to hear and determine the application.
She in particular submitted that this court is functus officio because Kimaru, J heard and determined the issue of sentence.
It was also her submission that the only remedy available to the applicant is to appeal to the Court of Appeal.
I have considered the submissions of the parties. I find that I have no jurisdiction to entertain and determine this review application because Kimaru, J heard and determined the issue of sentence on 01/7/2020.
I further find that the only remedy available to the applicant lies in filing an appeal to the Court of Appeal.
In the premises, the application is incompetent and is hereby dismissed.
RULING AND ORDER DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 9TH DAY OF MARCH 2022.
J. M. BWONWONG’A
JUDGE
Right of Appeal explained.
In the presence of-
1. Court Assistant: Kinyua
2. Present in person for the Applicant
3. Ms Joy for the Respondent