[2024] KEHC 715 (KLR)
The High Court held that once it has delivered its judgment on appeal and upheld the conviction and sentence, it becomes functus officio and lacks jurisdiction to review or alter its own decision. The applicant, having chosen not to appeal further to the Court of Appeal, is deemed to have accepted the decision. The...
Source-derived case information.
- Citation
- [2024] KEHC 715 (KLR)
- Parties
- Applicant: Geoffrey Makuto Jommo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 13 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- PJO Otieno
- Legal Topics
- Review of Sentence, Functus Officio, Jurisdiction of High Court, Defilement Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Makuto Jommo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review its own decision upholding conviction and sentence after dismissal of an appeal.
- 2 Whether the applicant is entitled to a reduction of sentence or alternative sentence after the appeal was dismissed and no further appeal was filed.
Ratio Decidendi
The High Court held that once it has delivered its judgment on appeal and upheld the conviction and sentence, it becomes functus officio and lacks jurisdiction to review or alter its own decision. The applicant, having chosen not to appeal further to the Court of Appeal, is deemed to have accepted the decision. The court found no legal basis to revisit or reduce the sentence or to impose an alternative sentence, and therefore dismissed the application for lack of merit.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- The court file is to be closed.
Full Case Text
Judgment text and source record
25 paragraphs
Jommo v Republic (Miscellaneous Criminal Application 13 of 2020) [2024] KEHC 715 (KLR) (19 January 2024) (Ruling)
Neutral citation: [2024] KEHC 715 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application 13 of 2020
PJO Otieno, J
January 19, 2024
Between
Geoffrey Makuto Jommo
Applicant
and
Republic
Respondent
(Appeal against the conviction and sentence by a judgment of (Musyoka J,) dated 17. 01. 2020, the appeal was dismissed Criminal Appeal 123 of 2018 )
Ruling
1. By a notice of motion filed in court on the 19. 2.2023 the appellant seeks, by way of review, that the sentence meted against him by the trial court and upheld by the High court on appeal be reduced or that an alternative to imprisonment term be considered.
2. The only reasons advanced to ground that prayer is that mitigation offered was never considered just as the available alternative forms of sentence were ignored. The application invokes the court’s jurisdiction under article 50 (2) of the constitution.
3. The application for revision was opposed by the prosecution which filed grounds of opposition and contended that the court lacks jurisdiction to revise its own order made by another judge; has become functus officio; that the applicant needed to approach the Court of Appeal by dint of article 164 (3) and section 37 a (1) of the Criminal Procedure Code; and lastly that the principles on resentencing enunciated in Francis Muruadetu1 and the prevailing jurisprudence on the same do not apply but militate against the orders sought from being granted.1[2015] eKLR
4. The record placed before the court reveals that the applicant was charged, tried and convicted for the offence of defilement of a minor aged 14 years and sentenced to serve an imprisonment term of 20 years. He appealed against the conviction and sentenced and by a judgment of this court, (Musyoka J,) dated 17. 01. 2020, the appeal was dismissed, the conviction adjudged safe and sentence found commensurate with the offence.
5. No appeal was preferred against the decision and it stands. It is that same decision the applicant now wants upset by reduction of the term for imprisonment or imposition of an alternative sentence.
6. To this court, article 50 (10) q envisages appeals and review by higher courts against convictions. It doesn’t permit the court to revisit its decision under the guise of review. Once the court delivered itself on the appeal and upheld the conviction and sentenced, the court became functus officio in the matter with the applicant having the undoubted right to challenge the decision at the Court of Appeal.
7. Having chosen not to appeal, he is deemed to have accepted this court’s decision with the consequence that the court is devoid of jurisdiction to revisit its decision.
8. The application is adjudged to have no merit and is thus dismissed.
9. Let the court file be closed.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF JANUARY, 2024PATRICK J O OTIENOJUDGEIn the presence of:The Applicant in personMs. Chala for the RespondentCourt Assistant: Polycap