[2024] KEHC 1328 (KLR)
The High Court held that it was functus officio regarding the review of the applicants' sentence, as the sentence had already been reviewed on appeal by Justice Ogola and a subsequent application for review had been struck out by Justice Otieno on the same grounds. The court found that the applicants' repeated...
Source-derived case information.
- Citation
- [2024] KEHC 1328 (KLR)
- Parties
- Applicant: Christopher Ndusi Khalumba; Applicant: Moses Khadaga Shirimba; Applicant: Felix Khatenyera Mulamula; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E023 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application struck out
- Judges
- SC Chirchir
- Legal Topics
- Review of Sentence, Functus Officio, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Ndusi Khalumba
Applicant
Moses Khadaga Shirimba
Applicant
Felix Khatenyera Mulamula
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the sentence after it has already been reviewed on appeal.
- 2 Whether the applicants are abusing the court process by filing multiple applications for review of sentence.
- 3 Whether the doctrine of functus officio applies to bar the present application.
Ratio Decidendi
The High Court held that it was functus officio regarding the review of the applicants' sentence, as the sentence had already been reviewed on appeal by Justice Ogola and a subsequent application for review had been struck out by Justice Otieno on the same grounds. The court found that the applicants' repeated filings of similar applications in different courts constituted an abuse of the court process and were vexatious. The proper avenue for further challenge was the Court of Appeal, not repeated applications before the High Court. Accordingly, the application was struck out for want of jurisdiction and abuse of process.
Court Disposition
application struck out
Orders
- The application dated 27th March, 2023 is struck out.
Full Case Text
Judgment text and source record
28 paragraphs
Khalumba & 2 others v Director of Public Prosecutions (Miscellaneous Criminal Application E023 of 2023) [2024] KEHC 1328 (KLR) (15 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1328 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E023 of 2023
SC Chirchir, J
February 15, 2024
Between
Christopher Ndusi Khalumba
1st Applicant
Moses Khadaga Shirimba
2nd Applicant
Felix Khatenyera Mulamula
3rd Applicant
and
Director of Public Prosecutions
Respondent
Ruling
1. What is coming up for determination is an Application for review of sentence, by the Applicants.
2. The three were convicted by the chief Magistrate’s court at kakamega for the offence of Robbery with violence and sentenced to Death in Criminal Case No. 72 of 2015.
3. Following an appeal to this court, under High Court Criminal Appeal No. 125, Justice Ogola, reduced the sentence to 20 years.
4. On 6th December, 2020, the Applicants came back to court under Misc. Criminal Application No. 72 of 2020 seeking for a review of the sentence, this time seeking that the sentence of 20 years be further reduced. In a ruling delivered on 18. 10. 2023, Justice Otieno struck out the Application on grounds that this court is functus Officio as Justice Ogola had already reviewed the sentence, albeit through an Appeal.
5. However, while the Misc. Application NO. 72 of 2020 was pending determination before this court, the Applicants moved to Bungoma High Court and filed Misc. Application No. E018 of 2023,seeking the same prayers. On noticing that this matter emanated from this court, the Judge in Bungoma referred the Application to this court and was registered under the current miscellaneous Number.
6. The prayers being sought therefore have been adjudicated upon before, by no less than two Judges, on two different times. By coming back to the High court, and filing similar Applications , and in two different courts, the Applicants are engaging in mischief, are being vexatious and are abusing the court process.
7. Nevertheless, as pointed out by Justice Otieno, in his Ruling dated 18. 10. 2023 , the Applicants ought to have moved to the court of Appeal if they were not satisfied by the Judgment of Justice Ogola.
8. Further , in the aforesaid Ruling, Justice Otieno had held that this court has become functus officio in as far as review of sentence is concerned. It remains so.
9. Consequently, the Application dated 27th March, 2023 is hereby struck out.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 15TH DAY OF FEBRUARY, 2024. S. CHIRCHIRJUDGEIn the presence of;Godwin- Court AssistantThe Appellants.