[2020] KEHC 895 (KLR)
The High Court held that it lacked jurisdiction to entertain the applicant's application for re-sentencing because the applicant had already lodged an appeal to the Court of Appeal, and the matter was pending before that superior court. The High Court, having already determined the appeal and become functus officio,...
Source-derived case information.
- Citation
- [2020] KEHC 895 (KLR)
- Parties
- Applicant: Kioko Kawembe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 62 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Re Sentencing Application; Prior Conviction and Sentence Upheld on Appeal; Application for Review Pending Appeal in Court of Appeal
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Robbery With Violence, Sentencing Review, Jurisdiction of High Court, Appeals Process, Functus Officio
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioko Kawembe
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Re Sentencing Application; Prior Conviction and Sentence Upheld on Appeal; Application for Review Pending Appeal in Court of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence while an appeal is pending before the Court of Appeal.
- 2 Whether the application for re-sentencing is properly before the High Court after it has become functus officio.
Ratio Decidendi
The High Court held that it lacked jurisdiction to entertain the applicant's application for re-sentencing because the applicant had already lodged an appeal to the Court of Appeal, and the matter was pending before that superior court. The High Court, having already determined the appeal and become functus officio, could not revisit the sentence or conviction. Entertaining the application would amount to concurrent consideration of the same matter in two different courts, contrary to the hierarchy of courts and the principle of finality. The applicant was advised to pursue his concerns before the Court of Appeal, which has the requisite jurisdiction to address both conviction and...
Court Disposition
application dismissed
Orders
- The applicant's application filed on 15.6.2020 is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Coram: D. K. Kemei – J
MISCELLANEOUS CRIMINAL APPL. NO. 62 OF 2020
KIOKO KAWEMBE........APPLICANT
VERSUS
REPUBLIC ...................RESPONDENT
RULING ON RE- SENTENCING
1. Kioko Kawembe, the Applicant herein was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. The Applicant pleaded not guilty and the case proceeded to full hearing. He was convicted of the count he was charged and the trial court sentenced him to serve a death sentence.
3. The Applicant was aggrieved by that decision and filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgment was delivered on 19. 12. 2017 by this court. The judgment dismissed the appeal and upheld the conviction and sentence of the trial court.
4. The Applicant did file a notice of appeal dated 6. 2.2018 on 6. 3.2018 with intention to file a 2nd appeal against the decision of the High Court to the Court of Appeal. I have also seen the memorandum of appeal indicating to the Court of Appeal dissatisfaction with the decision of this court. In addition, the applicant has now filed the present application before this court in which he seeks review of sentence pursuant to the decision in Francis Karioko Muruatetu & Another v R (2017) eKLR.
5. Because the matter is already in the Court of Appeal, if this court ventures into handling the application on its merits it would be tantamount to concurrent consideration of the same matter in two different courts and a disregard for the hierarchy of courts. This court has no jurisdiction to supervise a superior court. In this regard the applicant’s application ought to be directed to the Court of Appeal where his appeal is pending consideration. It is improper for the applicant who has already lodged an appeal to the Court of Appeal to come back to this court which has already discharged its duty and became functus officio. Such kind of conduct is akin to playing lottery. The applicant should be patient and wait for a determination of his appeal. Further, the applicant is advised that the appellate court is vested with the requisite powers to address his concerns regarding his appeal on both conviction and sentence.
6. The upshot of the foregoing is that the applicant’s application filed on 15. 6.2020 lacks merit. The same is dismissed.
It is so ordered.
Dated and delivered at Machakos this 10th day of December, 2020.
D. K. Kemei
Judge