[2023] KEHC 26088 (KLR)

Lelei v Republic (Criminal Petition 57 of 2020) [2023] KEHC 26088 (KLR) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26088 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Petition 57 of 2020

JRA Wananda, J

December 1, 2023

Between

Joseph Kiprop Lelei

Applicant

and

Republic

Respondent

Judgment

1. What is pending before Court is an Application seeking review of sentence.

2. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 30/08/2011 at Kamenjeywa village in Nandi County murdered one Samwel Kurgat.

3. The accused took plea on 10/10/2011, denied the charge and a plea of not guilty was entered. On 19/10/2011 the prosecution informed the Court that it had reduced the charge of murder to manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The fresh charge was read out to the Petitioner on 31/10/2011. He pleaded guilty. The Court (Karanja J) then sentenced him to 20 years imprisonment.

4. The Petitioner then filed the present Application by way of the undated Notice of Motion seeking for a sentence review. He pleaded that he is sick, he is 63 years of age, he has been in prison for 9 years, including the time spent in remand, he is remorseful and reformed. He urged to rely on the case of Francis Karioko Muruatetu & Another v Republic, and argued that the sentence meted upon him was too harsh considering that he was a first offender. He stated that during his time in prison, he has been able to go through various theological, social and vocational programmes and prayed for the sentence be reduced..

5. Prosecution Counsel, Emma Okok, filed her Submissions on 14/11/2023. She submitted that the Petitioner was given an opportunity to mitigate and he did so through his Advocate, the Petitioner has not exhausted his Appeal, the High Court (Karanja J) properly exercised its discretion in meting out the sentence, this Court cannot therefore review the sentence as it is a Court of similar jurisdiction.

6. In light of the above, I find that the issue that arises for determination herein “whether this Court should review the sentence imposed on the Petitioner”.

7. I have perused the record in Eldoret High Court Criminal Case No. 63 of 2011 and it is evident that the accused was sentenced by High Court Judge, Karanja on 31/10/2011. I presume that there has been no appeal against the decision and none was brought to my attention. As the sentence was imposed by a Court of concurrent jurisdiction, this Court is functus officio and cannot sit as an appellate Court on its own decision. In respect thereto, Section 364(5) of the Criminal Procedure Code provides as follows;(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

8. On the functus officio principle, the Court of Appeal in Telkom Kenya Limited vs John Ochanda [2014] eKLR, stated as follows:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar; is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”

9. L. Njuguna J, in the case of Boniface Gitonga Mwenda v Republic [2021] eKLR when faced with a similar situation held as follows;“However, as I have noted, the Petitioner herein appealed the trial court’s decision to this court. The court in dismissing the appeal against the sentence held that the trial court’s sentence was within the law. The first appellate court being a court of concurrent jurisdiction with this court, I am of the opinion that the judgment of the said court in that respect cannot be reviewed by this court. The jurisdiction of this court in relation to review is limited to record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. (See Section 362-364 of the Criminal Procedure Code).Reviewing of the sentence of a court of concurrent jurisdiction in relation to failure of the said court to take into account the period spent in custody would be tantamount to sitting as an Appellate court on the judgment of Hon. F. Muchemi J. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. This court doesn’t have jurisdiction in that respect and as such, the prayer to that respect ought to fail.”

10. Similarly, R. Lagat-Korir J, in Weldon Kipkirui Too v Republic [2021] eKLR stated as follows:“This court has no jurisdiction to review the sentence which was meted out by Muya J. a court of concurrent jurisdiction. The power to review the Applicant’s sentence now lies in the court of appeal as it does not fall within the revisionary jurisdiction of this court as provided for under Section 362 and 364 of the Criminal Procedure Code Cap 75. (See Ronald Kibet Rotich V. R, Bomet High Court Misc. Criminal Application No. E024 of 2021 [2021] eKLR).”

Final Orders 11. In the premises, I find that this Court cannot entertain the present Application as it lacks the jurisdiction to do so. I hereby dismiss it.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 1st DAY OF DECEMBER 2023WANANDA J.R. ANUROJUDGE