[2022] KEHC 750 (KLR)
The High Court held that it was functus officio and lacked jurisdiction to review or revise a sentence that had already been considered and substituted by the Court of Appeal. The court found that the applicant had already benefited from the principles established in the Muruatetu decision, as the Court of Appeal...
Source-derived case information.
- Citation
- [2022] KEHC 750 (KLR)
- Parties
- Applicant: Jonathan Lemiso Ole Kini; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 71 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- GL Nzioka
- Legal Topics
- Review of Sentence, Jurisdiction of High Court, Application of Muruatetu Principle, Functus Officio, Consideration of Time Spent in Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Lemiso Ole Kini
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence already considered and substituted by the Court of Appeal.
- 2 Whether the applicant is entitled to further review of sentence in light of the Muruatetu decision.
- 3 Whether the period spent in custody was properly considered in the applicant's sentence.
Ratio Decidendi
The High Court held that it was functus officio and lacked jurisdiction to review or revise a sentence that had already been considered and substituted by the Court of Appeal. The court found that the applicant had already benefited from the principles established in the Muruatetu decision, as the Court of Appeal had substituted the death sentence with a 30-year term after the Muruatetu ruling. The court further noted that the period spent in custody had been taken into account by the Court of Appeal, as the sentence was ordered to run from the date of the initial sentence. Consequently, the application for review lacked merit and was dismissed for want of jurisdiction and substance.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- No further orders are made.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COURT OF APPEAL NO. 51 OF 2016 AT NAIROBI
HIGH COURT CR CASE NO. 71 OF 2016 AT NAIROBI
MISC. APPLICATION NO. 237 OF 2018
JONATHAN LEMISO OLE KINI..............................................................APPLICANT
VERSUS
REPUBLIC............................................................................................RESPONDENT
RULING
1. By a chamber summons application dated; 8th June 2018, the Applicant is seeking for orders that; the Court reviews the sentence meted upon him of 30 years, as it is rather too harsh and excessive.
2. The application is supported by the affidavit sworn by the applicant, in which he avers that, he was charged with the offence of; murder in; High Court Criminal Case No. 71 of 2013, and sentenced to death. He appealed against the conviction and sentence vide; Court of Appeal CR 51 of 2016. The decision in the matter was delivered on; 11th May, 2018 whereupon the death sentence was set aside and substituted with a jail sentence of 30 years, with effect from; 13th May 2015, when the initial sentence was passed.
3. It is this decision that, the appellant seeks to be reviewed pursuant to the decision in; Francis Kariuki Muruatetu and Another vs Republic Petition 15 of 2015. The Applicant further relies on article 165(3)(a)(b) to argue that, the High Court has unlimited jurisdiction in Criminal and Civil Matters. Further, pursuant to Section 333(2) of the Criminal Procedure Code, the court should consider the period he spent in custody. He avers that, the application is solid based on mitigation basis and prayers for extension of leniency on humanitarian grounds.
4. The Respondent opposed the Application on the ground that, the decision of the Court of Appeal was delivered after the decision in Muratetu case, and therefore, the Applicant has already benefited from it. As such, the Court lacks jurisdiction to entertain the application, therefore, the application should be dismissed.
5. I have considered the application, in the light of the material before the Court, and I find that, first and foremost, this Court is functus officio in the sense that, when it delivered its decision, and the matter moved to the Court of Appeal, it lost the jurisdiction to entertain the matter again. In the same vein, once a matter has been dealt with by the Court of Appeal, and final orders given, the High Court cannot deal with it on revision or appeal basis, due to lack of jurisdiction. Even if the Court were to look into the matter on merit, it cannot entertain a matter in light of Muruatetu Decision where the decision has already been considered by the Court of Appeal. Furthermore, the Court cannot invoke its jurisdiction under; Article 165(3) (a) & (b) as it has no original jurisdiction of a matter that has been entertained by the Court of Appeal.
6. Finally, as regards the provisions of section 333(2) I note that, the Court of Appeal was clear that, the sentence would run from; 13th May 2015, when the initial sentence was passed. Therefore, the said provisions have been taken into account. In the given circumstances, the Application has no merit and I dismiss it. Those then are the orders of the Court.
DATED, DELIVERED VIRTUALLY AND SIGNED AT NAIROBI ON THIS 31ST DAY OF MARCH 2021.
GRACE L. NZIOKA
JUDGE
IN THE PRESENCE OF;
EDWIN OMBUNA- COURT ASSISTANT
APPLICANT IN PERSON
MS KIBATHI FOR THE RESPONDENT