[2018] KEHC 8173 (KLR)
The High Court held that it is functus officio after having determined the applicant's appeal and dismissed it on its merits. The applicant's attempt to introduce new grounds for a re-trial, after the appeal has been concluded, is not permissible. The court emphasized that it cannot review or sit on appeal over its...
Source-derived case information.
- Citation
- [2018] KEHC 8173 (KLR)
- Parties
- Applicant: Isaiah Kiplagat; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Cause 38 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Re Trial After Dismissal of Appeal
- Outcome
- application dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Retrial Application, Criminal Appeal Dismissal, Fair Trial Rights, Plea of Guilty, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Kiplagat
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Re Trial After Dismissal of Appeal
Legal Issues
- 1 Whether the High Court can grant a re-trial after it has already dismissed an appeal on the same conviction.
- 2 Whether the applicant was denied a fair hearing at the trial court, including lack of legal representation and language difficulties.
- 3 Whether the applicant's new grounds for re-trial are valid after the appeal has been determined.
Ratio Decidendi
The High Court held that it is functus officio after having determined the applicant's appeal and dismissed it on its merits. The applicant's attempt to introduce new grounds for a re-trial, after the appeal has been concluded, is not permissible. The court emphasized that it cannot review or sit on appeal over its own appellate decision. If the applicant is dissatisfied with the High Court's appellate judgment, the proper course is to appeal to the Court of Appeal. The application for re-trial was therefore dismissed as the High Court lacked jurisdiction to entertain it after the appeal had been determined.
Court Disposition
application dismissed
Orders
- The application for re-trial is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPLICATION CAUSE NO.38 OF 2017
ISAIAH KIPLAGAT.............................APPLICANT
VERSUS
REPUBLIC........................................RESPONDENT
RULING
1. The applicant, Isaiah Kiplagat was initially charged in the Bungoma Magistrate’s Court Criminal Case number 2740 of 2015 with the offence of defilement contrary to Section 8(1) as read with 8(4) of the Sexual Offences Act and was sentenced to 15 years upon pleading guilty.
2. He then appeal to this very Court, his grounds were that he admitted the charge due to pressure. The trial Court did not warn him of consequences of pleading guilty. He was not conversant with the Court language and his mitigation had not been considered.
3. This Court heard the appeal and dismissed the same on the 27th of July, 2017 having found the appeal devoid of any merit.
4. Before me is an interesting application “An application requesting for re-trial as the Law enjoins” the applicant is seeking another chance to be heard for the reason that he was not accorded fair and transparent hearing by the trial Court, as the said Court had relied on the evidence of one Party in arriving at its decision, that he was not given a State advocate and his fundamental rights were violated.
5. What is clear is that the applicant has shifted his goal posts since he filled his appeal and as an afterthought has crafted new grounds.
6. Nevertheless, the applicant is reminded that this Court cannot sit on its own appeal no matter how merited the new grounds may be. If he is aggrieved, as he appears to be with the judgement of this Court as an appeal Court, he is at liberty to take the next step by moving the Court of Appeal.
7. Application is therefore dismissed.
DATED and DELIVERED at BUNGOMA this 22nd day of February, 2018
ALI-ARONI
JUDGE