[2020] KEHC 1926 (KLR)
The High Court is functus officio in this matter, having already determined the applicant's appeal, which was subsequently dismissed by the Court of Appeal. There is no legal basis or jurisdiction for the High Court to entertain a resentencing application after the Court of Appeal has rendered its decision. Any...
Source-derived case information.
- Citation
- [2020] KEHC 1926 (KLR)
- Parties
- Applicant: Josephat Wambua Mbuvi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 121 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeals Dismissed
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Defilement Offence, Sentencing Principles, Functus Officio Doctrine
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Wambua Mbuvi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeals Dismissed
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence the applicant after the Court of Appeal has dismissed his appeal.
- 2 Whether the doctrine of functus officio bars the High Court from entertaining the resentencing application.
Ratio Decidendi
The High Court is functus officio in this matter, having already determined the applicant's appeal, which was subsequently dismissed by the Court of Appeal. There is no legal basis or jurisdiction for the High Court to entertain a resentencing application after the Court of Appeal has rendered its decision. Any application for review of sentence must be directed to the Court of Appeal, not the High Court. The doctrine of functus officio ensures finality in judicial proceedings and precludes the High Court from revisiting or altering its previous decisions once the appellate process has concluded.
Court Disposition
application dismissed
Orders
- The applicant's application for resentencing is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Coram: D. K. Kemei - J
MISCELLANEOUS CRIMINAL APPL. NO. 121 OF 2019
JOSEPHAT WAMBUA MBUVI......APPLICANT
VERSUS
REPUBLIC..................................RESPONDENT
RULING ON RE-SENTENCING
1. Josephat Wambua Mbuvi, the Applicant herein was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.
2. The Applicant entered an own plea of guilty before the trial court and was duly convicted and sentenced to serve life imprisonment.
3. The Applicant was aggrieved by the said conviction and sentence and filed an appeal to the High Court. The appeal was duly heard. A judgment was delivered on 27. 10. 2016 by this court. The appeal was dismissed.
4. The Applicant did file a second appeal against the decision of the High Court to the Court of Appeal. The learned justices of appeal vide judgement delivered on 24. 5.2019 dismissed the appeal. The applicant has now filed the present application before this court in which he seeks resentencing pursuant to the decisions in Francis Karioko Muruatetu & Another v R (2017) eKLRandEvans Wanjala Wanyonyi v R (2019) eKLR.
5. From the import of the functus officio doctrine this court cannot consider the application for resentencing. Once a court becomes functus officio, the only orders it can grant are review orders which are an exception to the functus officio doctrine. The Supreme Court in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR stated that:
“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 or adjudication must be taken to a higher court if that right is available.”
6. Most importantly the matter has already been handled by the Court of Appeal and there is no known law that affords this court with the jurisdiction to supervise the decision of a superior court. In this regard the applicant’s application ought to be directed to the Court of Appeal for review of sentence.
7. In the result the Applicant’s application filed on 31. 7.2019 lacks merit. The same is dismissed.
It is so ordered.
Dated and delivered at Machakos this 9th day of November, 2020.
D. K. Kemei
Judge