[2020] KEHC 2190 (KLR)
The High Court held that it was functus officio regarding the applicant's sentence, having already rendered decisions on the matter in previous rulings. The court emphasized that revisiting or altering the sentence would amount to sitting on appeal over its own decision, which is not permitted. The only recourse...
Source-derived case information.
- Citation
- [2020] KEHC 2190 (KLR)
- Parties
- Applicant: Dominic Nzangi Kimeu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application Application18 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Revision
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Sentence Revision, Functus Officio, Time Served, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Nzangi Kimeu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the High Court can revise the applicant's sentence to time served under section 333(2) of the Criminal Procedure Code.
- 2 Whether the High Court is functus officio in relation to the applicant's sentence.
Ratio Decidendi
The High Court held that it was functus officio regarding the applicant's sentence, having already rendered decisions on the matter in previous rulings. The court emphasized that revisiting or altering the sentence would amount to sitting on appeal over its own decision, which is not permitted. The only recourse available to the applicant is to appeal to the Court of Appeal. Consequently, the application for sentence revision under section 333(2) of the Criminal Procedure Code was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The applicant's application filed on 29.1.2020 is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Coram: D. K. Kemei - J
MISC. CRIMINAL APPL. NO.18 OF 2020
DOMINIC NZANGI KIMEU.........................................................APPLICANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
RULING
1. The Applicant in a series of chequered applications has approached this court yet again and this time seeking to invoke section 333(2) of the Criminal Procedure Code for revision of sentence.
2. The applicant seeks that the court make orders that the 2 years, 6 months and 6 days that he was in custody he considered. He also seeks that the sentence be reduced to the time served.
3. The application was disposed of by way of written submissions. The applicant pointed out to court that he was arrested on 13. 12. 2012 and that he failed to raise the bond of Kshs 500,000/- hence he remained in custody. He sought that the sentence be reduced to time served and indicated that he has acquired various skills as evidenced by the certificates attached to the submissions. Mr. Martin Mwongera, prosecution counsel opposed the application.
4. The issue for determination is whether the court may grant the order sought.
5. The court had severally pointed out vide ruling delivered by this court on 11. 6.2019 as well as that rendered by Hon Justice Odunga on 17. 1.2020 that this court is functus officio meaning that this court cannot reduce the sentence meted on the applicant to time served.
6. Vide this court’s ruling dated 11. 6.2019 it was pointed out that the Applicant’s request to have the judgement altered would amount to this court sitting on appeal and hence any appeals against an order from the high court can only be heard and determined by the Court of Appeal by dint of Article 164(3)(a) of the Constitution. This court must point out to the applicant that the court is already functus officio and the only recourse is for him to move to the Court of Appeal for further redress.
7. In the result the Applicant’s application filed on 29. 1.2020 lacks merit. The same is dismissed.
It is so ordered.
Dated and delivered at Machakos this 27th day of October,2020.
D. K. Kemei
Judge