https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6489
The application was dismissed because the High Court had already heard and dismissed the applicant’s appeal, rendering it functus officio and without jurisdiction to revisit the sentence or the alleged non-compliance with section 333(2) of the Criminal Procedure Code; those matters belonged in the earlier appeal,...
Source-derived case information.
- Citation
- [2026] KEHC 6489 (KLR)
- Parties
- Applicant: FGM; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Sexual Offence E071 of 2022
- Procedural Posture
- Sexual Offence Revision Application / Post Appeal Ruling on Application to Review Sentence
- Outcome
- Application dismissed; preliminary objection allowed.
- Judges
- ["AK Ndung'u"]
- Legal Topics
- Defilement, Revision of Sentence, Section 333(2) Criminal Procedure Code, Functus Officio, Preliminary Objection, Time Spent in Remand
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FGM
Applicant
Republic
Respondent
Procedural Posture
Sexual Offence Revision Application / Post Appeal Ruling on Application to Review Sentence
Legal Issues
- 1 Whether the High Court had jurisdiction to revisit the sentence and compliance with section 333(2) of the Criminal Procedure Code after dismissing the applicant's appeal
- 2 Whether the application was barred by the doctrine of functus officio
- 3 Whether the preliminary objection had merit
Ratio Decidendi
The application was dismissed because the High Court had already heard and dismissed the applicant’s appeal, rendering it functus officio and without jurisdiction to revisit the sentence or the alleged non-compliance with section 333(2) of the Criminal Procedure Code; those matters belonged in the earlier appeal, and any further grievance lay to the Court of Appeal.
Court Disposition
Application dismissed; preliminary objection allowed.
Orders
- The preliminary objection is allowed.
- The application is dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
FGM v Republic (Sexual Offence E071 of 2022) [2026] KEHC 6489 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6489 (KLR) Republic of Kenya In the High Court at Nanyuki Sexual Offence E071 of 2022 AK Ndung'u, J May 14, 2026 Between FGM Applicant and Republic Respondent (From the Original Conviction and Sentence in SO Case No Eo71 of 2022 in the Chief’s Magistrate Principle Senior Resident/Magistrate’s Court at Nanyuki) Ruling 1.The Applicant moved the Court to review the sentence of twelve (12) years imprisonment for an offence of Defilement/contrary to section 8(1) as read with (3) of the Sexual Offense Act No 3 of 2006 Laws of Kenya, in SO Case No 71 of 2022 on 6th day of September 2023 on the grounds that:a.He pleaded not guilty to the offenceb.That the Revision was based on section 333(2) of the Criminal Procedure Code. 2.The Application is premised on the grounds on the face of it and the averments of the Applicant on the grounds of revision stated in verbatim as herein under:-a.That my Lordship since 27 December 2022 I was sent in remand pending trial until 06th September, 2023 when I was convicted and sentence to serve 12 years the trail magistrate not considering the time spent in remand.b.That I pray for this honorable court consider that period spent in custody as outlined in section 333(2) of the CPCc.That My Lordship, I rely on the case of Ahmad Abolfathi vs Republic (2016) eKLR which held that time spent in custody should be taken into account.d.That My lordship in the interest of justice I pray for consideration in this matter to secure my rights. 3.In response the State raised a preliminary objection on the grounds that:-a.The court was functus officio having already delivered its judgment dismissing the Applicants Appeal in High Court Criminal Appeal Number E069 OF 2023 on 17th January, 2025.b.That the application was an abuse of the court process and should accordingly be dismissed. 4.The application was canvased by way of written submission. 5.I have considered the application, the affidavit evidence and the preliminary objection. 6.I have considered the application, the affidavit evidence, and the preliminary objection. This court, having heard and dismissed the Applicant’s appeal, is functus officio and therefore lacks jurisdiction to revisit the question whether Section 333(2) of the Criminal Procedure Code was complied with by the trial court. Those are matters which ought to have been raised and determined during the appeal. The Applicant’s recourse, if aggrieved by the decision of this court or by any alleged omission in the appellate determination, lies with the Court of Appeal. 7.With the result that the preliminary objection raised has merit and is allowed. The net effect is that the application herein is dismissed. DATED SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MAY 2026A.K. NDUNG’UJUDGE