[2012] KEHC 5949 (KLR)
The court held that after conviction and sentencing, the trial magistrate became functus officio and lacked jurisdiction to entertain an application for change of plea or to vacate the conviction and sentence. The subsequent proceedings, including the taking of a fresh plea and admission to bond, were irregular and...
Source-derived case information.
- Citation
- [2012] KEHC 5949 (KLR)
- Parties
- Accused: Ibrahim Mohamed; Prosecutor: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 471 of 2012
- Procedural Posture
- Criminal Revision / Revision of Subordinate Court Proceedings After Conviction and Sentence
- Outcome
- Subsequent proceedings after conviction and sentence vacated; original conviction and sentence restored.
- Legal Topics
- Traffic Offences, Plea Change Procedure, Functus Officio, Criminal Revision, Sentencing, Jurisdiction of Magistrate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Mohamed
Accused
Republic
Prosecutor
Procedural Posture
Criminal Revision / Revision of Subordinate Court Proceedings After Conviction and Sentence
Legal Issues
- 1 Whether a magistrate has jurisdiction to allow a change of plea after conviction and sentencing.
- 2 Whether proceedings conducted after conviction and sentencing are irregular and void.
Ratio Decidendi
The court held that after conviction and sentencing, the trial magistrate became functus officio and lacked jurisdiction to entertain an application for change of plea or to vacate the conviction and sentence. The subsequent proceedings, including the taking of a fresh plea and admission to bond, were irregular and void. The only valid orders were those made upon the initial conviction and sentence. The court exercised its revisionary jurisdiction to vacate the irregular proceedings and restore the original sentence, requiring the accused to either pay the fine or serve the default custodial sentence.
Court Disposition
Subsequent proceedings after conviction and sentence vacated; original conviction and sentence restored.
Orders
- The proceedings and orders made after conviction and sentencing are vacated.
- The accused shall pay the fine of Kshs. 50,000 or serve 2 months imprisonment as previously ordered.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT MACHAKOS
Criminal Revision 471 of 2012
IBRAHIM MOHAMED ...........................................ACCUSED
VERSUS
REPUBLIC....................................................PROSECUTOR
ORDER ON REVISION
The accused was arraigned before the Principal Magistrate’s Court at Mavoko on 10th September, 2012 charged with the traffic offence of permitting the use of motor vehicle on road with a load greater than the load specified contrary to section 55(2) and rule 41(2) of the Legal Notice No. 118 dated 12th September, 2008 of the Traffic Act. The accused pleaded guilty and was fined Kshs. 50,000/= in default 2 months imprisonment. It would appear that later, on the same day by a letter dated 10th September, 2012, the accused applied to the same court for change of plea. The Honourable Magistrate acceded to the request, called for the file ,allowed the application and proceeded to take a fresh plea despite having earlier convicted and sentenced the accused. The accused this time around pleaded not guilty and was admitted to a bond of Kshs. 100,000/= with a surety of like sum or cash bail of Kshs. 50,000/=. The case was then set for hearing on 14th November, 2012 with a mention on 24th September, 2012.
Sensing the irregularity in the subsequent proceedings, the magistrate in charge of the station, Hon. T.A. Odera, P.M. forwarded the file to this court with a view to correcting the anomaly in the exercise of powers of revision donated to this court by section 363(2) of the Criminal Procedure Code. This jurisdiction is exercised where this court deems that the criminal proceedings before any subordinate court to be incorrect, illegal, irregular and or suffers from one form of impropriety or the other.
In this case, I have no doubt at all in my mind that the proceedings and orders made by the learned Resident Magistrate subsequent to the conviction and sentencing of the accused were irregular. Once she convicted and imposed the sentence, she became functus officio. She had no jurisdiction to recall and vacate the previous proceedings. Much as an accused has a right to change is plea any time before sentence, he lost that right the moment he was convicted and sentenced. Since the subsequent proceedings were irregular, the same are hereby vacated with the consequence that the accused either pays the fine of Kshs. 50,000/= or faces a jail term of 2 months as previously ordered.
DATED,SIGNED at MACHAKOSthis 19TH day of SEPTEMBER, 2012.
ASIKE –MAKHANDIA
JUDGE