[2019] KEHC 5917 (KLR)
The High Court held that it had no jurisdiction to entertain the appeals/applications filed by Jackson Mwanzia Musembi because the matter had already been conclusively determined by the Court of Appeal. Any attempt to re-litigate the same matter before the High Court after the appellate process has been exhausted...
Source-derived case information.
- Citation
- [2019] KEHC 5917 (KLR)
- Parties
- Appellant: Jackson Mwanzia Musembi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Judgment Date
- 22 May 2019
- Case Number
- Criminal Appeal 265 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Admissibility and Abuse of Process
- Outcome
- applications/appeals struck out as abuse of process; files ordered closed
- Legal Topics
- Defilement Offence, Sexual Offences Act, Abuse of Process, Retrial Applications
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Mwanzia Musembi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Admissibility and Abuse of Process
Legal Issues
- 1 Whether the High Court can entertain a criminal appeal after the Court of Appeal has already determined the matter.
- 2 Whether the applications filed by the appellant constitute an abuse of court process.
Ratio Decidendi
The High Court held that it had no jurisdiction to entertain the appeals/applications filed by Jackson Mwanzia Musembi because the matter had already been conclusively determined by the Court of Appeal. Any attempt to re-litigate the same matter before the High Court after the appellate process has been exhausted amounts to an abuse of court process. Consequently, the court struck out the applications/appeals and ordered the files closed, while clarifying that the appellant remains at liberty to seek redress through any other appropriate legal avenue.
Court Disposition
applications/appeals struck out as abuse of process; files ordered closed
Orders
- The applications/appeals in Makueni HCRA No. 265/2017 and 40/2018 are struck out.
- The files for both appeals are ordered closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA NO. 265 OF 2017 & HCCRA NO.40 OF 2018
JACKSON MWANZIA MUSEMBI.....................APPELLANT
VERSUS
REPUBLIC..........................................................RESPONDENT
RULING
1. This ruling is in respect to Makueni High Court Criminal Appeal Nos 265/2017 and 40/2018 where the Appellant is Jackson Mwanzia Musembi while the Respondent is the Republic of Kenya. The files have been placed before me by the Deputy Registrar for some directions. The said appeals originate from Makindu SPM’s Cr. Case No. 237 of 2012.
2. The “Appellant” was charged and convicted of the offence of defilement contrary to Section 8(1) and (2) of the Sexual Offences Act by Hon. P. Wambugu Resident Magistrate on 10th May, 2013 and sentenced to life imprisonment. He filed Machakos High Court Criminal Appeal No. 99 of 2013 which was dismissed on 16th September, 2014 by Justice L. Mutende. He moved to the court of Appeal Nairobi vide Criminal Appeal No. 42 of 2016. The same was heard and dismissed on 10th February, 2017.
3. Aware of all this, he filed some papers at Makueni Law Courts by way of Chamber Summons in 2017 and 2018 seeking to have a retrial ordered. There was no petition attached to the said application.
The registry at Makueni Law Courts proceeded to register the same and opened Makueni HCRA Nos 265/2017 and 40/2018. Infact HCRA No. 40/2018 was admitted for hearing by Kariuki – Judge on 19th October, 2018.
4. There is no way the said Jackson Mwanzia Musembi could file an appeal before the High Court when the court of Appeal had already heard and determined the matter. This amounts to abuse of process. I therefore strike out the applications/ appeals in both Makueni HCRA No. 265/2017 and 40/2018 and order the files closed.
5. The said Jackson Mwanzia Musembi is at liberty to move the court in any other appropriate manner.
6. Copies of this ruling should be filed in the following files:
Makueni HCRA No. 265/2017
Makueni HCRA No. 40/2018
Makindu SPMCRC No. 237/2012 for record purposes.
Orders accordingly.
DELIVERED, SIGNED & DATED THIS 22ND DAY OF MAY 2019, IN OPEN COURT AT MAKUENI.
H. I. ONG’UDI
JUDGE