[2022] KEHC 13635 (KLR)
The court held that it was functus officio after delivering its judgment on appeal and therefore lacked jurisdiction to entertain the application for sentence review. The applicant's attempt to raise issues under section 333(2) of the Criminal Procedure Code at this stage was improper, as such issues should have...
Source-derived case information.
- Citation
- [2022] KEHC 13635 (KLR)
- Parties
- Applicant: Jeniso Lebuyere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E150 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Review Application After Conviction and Appeal Dismissal
- Outcome
- application dismissed
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Functus Officio, Abuse of Process, Statutory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeniso Lebuyere
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Review Application After Conviction and Appeal Dismissal
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after dismissal of his appeal.
- 2 Whether the application for sentence review is an abuse of process given the prior appeal.
- 3 Whether section 333(2) of the Criminal Procedure Code applies to the applicant's circumstances.
Ratio Decidendi
The court held that it was functus officio after delivering its judgment on appeal and therefore lacked jurisdiction to entertain the application for sentence review. The applicant's attempt to raise issues under section 333(2) of the Criminal Procedure Code at this stage was improper, as such issues should have been raised during the appeal. Entertaining the application would amount to allowing piecemeal litigation and an abuse of process. The court further noted that the sentence imposed was the statutory minimum and had already been affirmed as legal and proper by the appellate court. Accordingly, the application was dismissed for want of merit and/or prosecution, and the applicant was...
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed for want of merit and/or prosecution.
- The applicant may pursue an appeal in the Court of Appeal if aggrieved by the High Court judgment.
Full Case Text
Judgment text and source record
18 paragraphs
Lebuyere v Republic (Miscellaneous Criminal Application E150 of 2021) [2022] KEHC 13635 (KLR) (4 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13635 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E150 of 2021
GL Nzioka, J
October 4, 2022
Between
Jeniso Lebuyere
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged vide Chief Magistrate’s Criminal Case No. 1306 of 2013, at Naivasha with the offence of Rape contrary to section 3 of the Sexual Offences Act. He was charged in the 2nd count with the offence of assault contrary to section 215 of the Penal Code. The particulars of each count are as per the charge sheet.
2. He entered a plea of not guilty, the case proceeded to a full hearing and he was subsequently found guilty on both counts, and sentence to ten (10) and one (1) years imprisonment, respectively. Being aggrieved with the conviction and sentence, he appealed against both vide High Court Criminal Appeal No. 87 of 2015. The Appeal was heard and vide a Judgment dated 26th July 2018 the appeal was dismissed in its entirety.
3. The applicant has now filed the subject application seeking for, sentence review, as aforesaid. Having considered the subject notice of motion application dated 14th October 2019, the affidavit in support thereof, and find as follows;-a.First and foremost this court is functus official, in the sense that once the Judgment on appeal was pronounced, the court lost it’s jurisdiction to revisit the matter. In particular the impugned sentence which was dealt with an appeal on that ground alone, the application cannot be allowed.b.Secondly, the issue raised herein based on section 333(2) of the Criminal Procedure Code should have been raised during the hearing of the appeal. The applicant cannot be allowed to prosecute the subject matter herein in piece meals. That amounts to an abuse of the due process of law.c.Thirdly from the record of the Judgment rendered in the High Court Criminal Appeal No. 87 of 2015, the court clearly stated that, the sentence meted of ten (10) years was statutory minimum, legal and proper. That in the court’s considered view considering the circumstances of the offence, the Appellant deserved a more severe sentence but the Director of Public Prosecution did not address the court in that regard.In view of the aforesaid, I find no merit in the subject application and dismiss it and/or dismiss it for want of prosecution. The appellant should pursue an appeal in the Court of Appeal if he is aggrieved with the judgment rendered by the High Court.It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF OCTOBER 2022. GRACE L. NZIOKAJUDGEIn the presence of:-Applicant in personMs Maingi for the stateMs Ogutu Court Assistant