[2021] KEHC 13635 (KLR)
The High Court held that it is functus officio after having delivered its judgment on appeal and cannot revisit or alter the sentence imposed by the Court of Appeal. The doctrine of functus officio, as affirmed by the Supreme Court and other authorities, dictates that once a court has performed its adjudicative...
Source-derived case information.
- Citation
- [2021] KEHC 13635 (KLR)
- Parties
- Applicant: Emmanuel Ochieng Owuondo; Applicant: Isaac Ndira Osore; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 8 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Review or Interfere With Sentence After Court of Appeal Decision
- Outcome
- application dismissed
- Judges
- KW Kiarie
- Legal Topics
- Sentencing Principles, Functus Officio, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Emmanuel Ochieng Owuondo
Applicant
Isaac Ndira Osore
Applicant
The Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Review or Interfere With Sentence After Court of Appeal Decision
Legal Issues
- 1 Whether the High Court has jurisdiction to interfere with a sentence already determined by the Court of Appeal.
- 2 Whether the doctrine of functus officio precludes the High Court from revisiting the sentence imposed by the Court of Appeal.
Ratio Decidendi
The High Court held that it is functus officio after having delivered its judgment on appeal and cannot revisit or alter the sentence imposed by the Court of Appeal. The doctrine of functus officio, as affirmed by the Supreme Court and other authorities, dictates that once a court has performed its adjudicative function and perfected its judgment, it lacks jurisdiction to review or vary its decision except for clerical errors. Therefore, any dissatisfaction with the sentence imposed by the Court of Appeal must be addressed by appealing to the Supreme Court, not by seeking review in the High Court. The application was dismissed for want of jurisdiction.
Court Disposition
application dismissed
Orders
- The application to interfere with the sentence imposed by the Court of Appeal is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
MISCELLANEOUS CRIMINAL APPLICATION NO. 8 OF 2020
EMMANUEL OCHIENG OWUONDO............1ST APPLICANT
ISAAC NDIRA OSORE.....................................2ND APPLICANT
VERSUS
THE REPUBLIC....................................................RESPONDENT
RULING
1. Emmanuel Ochieng Owundo and Isaac Ndira Osore, the petitioners herein, were convicted for the offence of being in possessions of Narcotic Drugs contrary to section 3 (2) of the Narcotic Drugs and Psychotropic Substances Act. They were found guilty and upon conviction were sentenced to life imprisonment. When they appealed to the High Court, their appeal was dismissed. However, when they appealed to the Court of appeal, their sentence was reduced and were ordered to serve ten years imprisonment. Apparently the applicants were not satisfied with the sentence. They have brought the present application seeking the court to interfere with the sentence meted by the Court of Appeal.
2. The applicants were in person and relied on the decision of the Supreme Court in the case of FrancisKarioko Muruatetu & Another vs. Republic [2017] eKLR.
3. The respondent opposed the application and contended that the interference with the sentence by the Court of Appeal would amount to undermining the authority of that Court.
4. When this court (differently constituted) delivered itself on appeal, it ceased to have jurisdiction and functus officio. InRaila Odinga & 2 Others vs. Independent Electoral & Boundaries Commission & 3 Others [2013] EKLRthe Supreme Court cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832which reads:
...The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.
At paragraph 19 in the Raila Case (Supra) the Court further stated:
This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550:
A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.
5. I have stated before that sentencing is a judicial exercise. Once a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it, is the appellate one. Black’s Law Dictionary Tenth (10th ) Editiondescribes defines sentence as:
The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.
6. If the applicants were dissatisfied with the decision by the Court of Appeal, the only option was to move to the Supreme Court. Just like in water where there is a non-return valve, they can only move upwards. Their application is therefore dismissed.
DELIVEREDandSIGNEDatHOMA BAY this26th dayof May, 2021
KIARIE WAWERU KIARIE
JUDGE