[2022] KEHC 26968 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E474 OF 2021

BETWEEN

JOSEPH KIMUYU KING’OO........................................................1ST PETITIONER

CORNELIUS MULILI MBUI.........................................................2ND PETTIONER

VERSUS

REPUBLIC...........................................................................................RESPONDENT

R U L I N G

Introduction

1. The Petitioners filed the Petition dated 31st August, 2021 claiming a violation of their constitutional rights. They, therefore, sought for the following orders: -

a) A declaration that the Petitioner is entitled to the payment of compensation by way of damages and costs by the Government of Kenya for the violation of the 1st and 2nd Petitioners’ fundamental rights guaranteed under the afore-mentioned provisions of the constitution;

b) General damages;

c) Exemplary damages;

d) Aggravated damages and

e) Costs of this petition.

2. They also filed a Notice of Motion of even date seeking the following orders: -

i) Spent.

ii) Spent

iii) This honourable Court be pleased to issue an order that the continued incarceration of the 1st and 2nd petitioners is an infringement of their constitutional right;

iv) This honourable Court be pleased to issue an order giving directions as will ensure that the petition herein is heard and determined within reasonable time;

v) The honourable Court be pleased to issue such orders giving directions as will ensure that the petition herein is heard and determined as a matter of personal interest; and

vi) The costs of the application be borne by the respondent in any event.

3. Both the Petition and the Notice of Motion are supported by the affidavit of Rebecca Kiprono counsel for the Petitioners and grounds on the face of the application. The office of the Director of Public Prosecution on behalf of the Respondent filed grounds of opposition to the application dated 31st August, 2021.

4. A brief background to this matter as narrated by the counsel Rebecca Kiprono will suffice. Both Petitioners were charged and convicted of the offence of Robbery with Violence Contrary to Section 296(2) of the Penal Code. This was in Criminal Case No. 1914 of 2012 of Chief Magistrate’s Court at Makadara by Hon. T Okello, Senior Principal Magistrate then. Each of them was sentenced to suffer the death sentence.

5. The petitioners filed appeals in the High Court against both conviction and Sentence. These were in Milimani High Court Criminal Appeal Nos. 327 of 2012 and 328 of 2012 which were both dismissed. They filed another appeal in Nairobi Court of appeal No. 111 of 2017. They later withdrew the matter before the Court of appeal and opted for a resentencing application in Makadara, Miscellaneous Application No. 171 of 2019. The same was later dismissed allegedly following the Hon. Chief Justice’s directive.

6. They, therefore decided to file this petition seeking a declaration of a violation of their constitutional rights to a fair trial.

7. Upon perusal of the pleadings and all the annextures this court asked both Counsel appearing to address it on the issue of jurisdiction. This, they did orally, on 3rd February, 2022.

8. Miss Kiprono Counsel for the petitioners submitted that the matter was properly before this Court as there was no matter pending before any other Court adding that the issues were on constitutional rights. Furthermore Counsel submitted that this Court has unlimited jurisdiction to hear such matters.

9. Mr. Achochi Counsel for the respondent on the other hand, submitted that the petitioners had been before the High Court in appeal No.327 & 328/2012 which had been dismissed. He in effect states that at that point this Court became functus officio. It is his argument as such that the petitioners ought to have raised the issues raised in this petition in the criminal appeal.

ANALYSIS AND DETERMINATION

10. From the foregoing account the only issue for determination is whether this Court has jurisdiction to entertain this matter owing to the fact the matter was previously before the High Court, Criminal Division on appeal.

11. This Court’s authority to entertain this matter has been challenged by the respondent who asserts that the petitioners were before the High Court in Appeals No.327 & 328/2012. In effect Mr. Achochi argues that at that point this Court also being the High Court became functus officio. On the flipside Miss Kiprono argues that the matter is properly before this Court as the issues raised are constitutional and that this Court has unlimited jurisdiction to hear such matters.

12. The importance of a Court’s jurisdiction to entertain matters before it cannot be over emphasized. The Supreme Court In the Matter of the Interim Independent Electoral Commission Constitutional Application No. 2 of 2011 made a clear statement on this issue as follows:

“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”

13. That said, to answer the issue raised by the respondent, it is imperative to examine the components of what constitutes the term functus officio and whether or not this principle is applicable in the circumstances of this matter.

14. To start with, the Supreme Court of Kenya while expounding on the doctrine of functus officio gave the following guidance in the case of Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR:

“[18] We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:

“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.”

[19] This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550:

“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied].

15. The petitioners’ response to the respondent’s issue that this Court is functus officio is that the matters raised in this Court are constitutional in nature and as a result were not considered by the High Court in criminal Appeal No.327 & 328/2012. Of interest to note is that Article 165 (3) (d) of the Constitution vests power to the High Court to hear any question respecting the interpretation of the Constitution. This provision as can be reasonably deduced was available to the petitioners before the High Court in their Criminal Appeals. The Petitioners, however, state that the constitutional issues were not raised before the said Court despite it having jurisdiction to entertain the alleged questions.

16. As guided by the Supreme Court decision above, it is emphasized that a person in this case the Court, which is also the High Court is vested with adjudicative or decision-making powers and may, as a general rule, exercise those powers only once in relation to the same matter. The underlying principle being that once such a decision has been given, it is final and conclusive before that very court.

17. Though hiding under the alleged violation of constitutional rights, what the petitioners are asking this court to do is to exercise supervisory jurisdiction over a court of equal status to it. This court having discharged its mandate vide High Court Criminal Appeals No. 327 of 2012 and 328 of 2012 has no further authority to entertain this matter as it is functus officio.

18. The Petitioner still have opportunity to challenge the two judge Bench decision delivered on 28th July, 2014 before the Court of Appeal. Therefore not all is lost.

19. The upshot is that this court lacks jurisdiction to entertain this petition. The same is struck out and file closed. No order as to costs.

DELIVERED, DATED AND SIGNED VIRTUALLY, THIS 3RD DAY OF MARCH, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.

H I ONG’UDI

HIGH COURT, JUDGE