[2021] KEHC 6922 (KLR)
The court held that it was functus officio, having no jurisdiction to entertain the application for review of sentence because the matter had already been determined by a court of concurrent jurisdiction (Kimaru J.). The doctrine of functus officio, as affirmed by the Supreme Court in Raila Odinga & Others vs. IEBC...
Source-derived case information.
- Citation
- [2021] KEHC 6922 (KLR)
- Parties
- Applicant: Joseph Irungu Kibe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 207 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Sentence Review, Functus Officio, Remand Custody Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Irungu Kibe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after a previous application was determined by a court of concurrent jurisdiction.
- 2 Whether the doctrine of functus officio bars the court from entertaining the present application for review of sentence.
Ratio Decidendi
The court held that it was functus officio, having no jurisdiction to entertain the application for review of sentence because the matter had already been determined by a court of concurrent jurisdiction (Kimaru J.). The doctrine of functus officio, as affirmed by the Supreme Court in Raila Odinga & Others vs. IEBC & Others [2013] eKLR, precludes a court from revisiting a matter it has already conclusively determined. Since the applicant's previous application for review of sentence was dismissed on its merits, this court cannot re-adjudicate the same issue. The application was therefore dismissed for want of jurisdiction.
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
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION - MILIMANI COURT
CRIMINAL REVISION NO. 207 OF 2019
JOSEPH IRUNGU KIBE...........................................................................................APPLICANT
VERSES
REPUBLIC...............................................................................................................RESPONDENT
RULING
1. Joseph Irungu Kibe, the Applicant, approached this court seeking review of the sentence meted out following the offence he committed. In the affidavit in support of the application he deposes that he was tried and convicted for the offence of possession of a firearm and breaking into a building and committing a felony, whereby he was sentenced to serve 7 years imprisonment, and 1 year, 6 months respectively. He expressed remorse and called upon the court to take into account the time he spent in remand custody, namely 2 years, 8 months and consider ordering him to serve a non- custodial sentence.
2. The Respondent did not file a response to the Application.
3. The Application was canvassed through oral submissions. The applicant sought review of sentence. Ms. Ndombi, learned State Counsel pointed out that a similar application had been determined by Kimaru J. a fact admitted by the Applicant.
4. I have perused a Ruling delivered on 21st June, 2018 by Kimaru J. for review of the sentence alluded to herein. The learned Judge was of the view that the trial court in reaching its decision took into consideration the period that the Applicant was held in remand custody. Consequently, the Application was dismissed for lack of merit.
5. The application for review of sentence having been considered by Kimaru J. who presided over a court of concurrent jurisdiction with this court, his order finally determined the matter, therefore, this court is functus officio.
6. The Supreme Court expounding on the doctrine of functus officio in Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others vs. IEBC & Others [2013] eklr citing with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832 stated thus: -
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”
7. The upshot of the above is that this court being functus officio is not seized of jurisdiction to determine the matter. In the result, the application fails and is dismissed.
8. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY, THIS 19TH DAY MAY, 2021.
L. N. MUTENDE
JUDGE