[2023] KEHC 170 (KLR)
The High Court held that it lacked jurisdiction to review the applicant's sentence because it had already heard and determined the applicant's appeal, and the files had been forwarded to the Court of Appeal. The court was therefore functus officio and could not entertain the application for review under section...
Source-derived case information.
- Citation
- [2023] KEHC 170 (KLR)
- Parties
- Applicant: Samuel Ndung’U Kimani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E171 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lack of merit
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Functus Officio, Sexual Offences, Defilement, Criminal Appeal, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ndung’U Kimani
Applicant
Republic
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 applicant's sentence after the appeal has been determined and files forwarded to the Court of Appeal.
- 2 Whether section 333(2) of the Criminal Procedure Code and article 50(2)(p)(q) of the Constitution entitle the applicant to a review of sentence in these circumstances.
Ratio Decidendi
The High Court held that it lacked jurisdiction to review the applicant's sentence because it had already heard and determined the applicant's appeal, and the files had been forwarded to the Court of Appeal. The court was therefore functus officio and could not entertain the application for review under section 333(2) of the Criminal Procedure Code or article 50(2)(p)(q) of the Constitution. The application was struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lacking merit.
Court Disposition
application struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lack of merit
Orders
- The application is struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lack of merit.
Full Case Text
Judgment text and source record
21 paragraphs
Kimani v Republic (Miscellaneous Criminal Application E171 of 2021) [2023] KEHC 170 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 170 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E171 of 2021
GL Nzioka, J
January 4, 2023
Between
Samuel Ndung’U Kimani
Applicant
and
Republic
Respondent
Ruling
1. By a chamber summons application filed herein on November 4, 2021, the applicant is seeking for review of the sentence meted against him videCriminal Case No 1442 of 2012, at the Chief Magistrate’s Court at Naivasha. He prays that, the court be pleased to revise the sentence and take into account the provisions of; article 50(2)(p)(q) of the Constitution and section 333(2) of the Criminal Procedure Code. The application is supported by an affidavit sworn by the applicant.
2. The respondent did not file any response to the application. However, I note from the materials placed before the court that, the applicant was arraigned before the Chief Magistrate’s Court charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to; section 11(1) of the said Act. He was subsequently convicted on the main count and sentenced to serve twenty (20) years imprisonment.
3. The applicant avers that, he filed appeal at Naivasha High Court No17 of 2014, that was heard and dismissed in its entirety on May 12, 2017. Be that as it may, there is an indication that, the applicant has filed an appeal at the Court of Appeal, as both the trial and High Court files have been forwarded to that court.
4. In that case, the application herein to review the sentence based on the provision of section 333 (2) of theCriminal Procedure Code is not tenable as this court became functus officio upon hearing and determining the appeal.
5. I accordingly strike out the current application for want of jurisdiction and/or dismiss it for being an abuse of court process and/or lack of merit.
6. It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF JANUARY 2023GRACE L NZIOKAJUDGEIn the presence of:Applicant in person virtuallyMr. Ndiema for the RespondentMs Ogutu-Court Assistant