[2023] KEHC 171 (KLR)
The High Court held that it was functus officio regarding the applicant's sentence because the matter had already been determined on appeal, with the appellate court remitting the case to the trial court for resentencing. Since there was no indication that resentencing had occurred, the application for review before...
Source-derived case information.
- Citation
- [2023] KEHC 171 (KLR)
- Parties
- Applicant: Peter Matheri Macharia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E152 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application struck out and/or dismissed for lack of merit
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Functus Officio, Criminal Appeal, Sexual Offences, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Matheri Macharia
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court can review the applicant's sentence after the matter was remitted for resentencing by the appellate court.
- 2 Whether the doctrine of functus officio applies to bar the court from entertaining the application for review of sentence.
Ratio Decidendi
The High Court held that it was functus officio regarding the applicant's sentence because the matter had already been determined on appeal, with the appellate court remitting the case to the trial court for resentencing. Since there was no indication that resentencing had occurred, the application for review before the High Court was premature and constituted an abuse of court process. The doctrine of functus officio precluded the High Court from revisiting the merits of the sentence, as its jurisdiction had been exhausted upon the earlier appellate decision. Consequently, the application was struck out or dismissed for lack of merit.
Court Disposition
application struck out and/or dismissed for lack of merit
Orders
- The application for review of sentence is struck out and/or dismissed for lack of merit.
Full Case Text
Judgment text and source record
21 paragraphs
Macharia v Republic (Miscellaneous Criminal Application E152 of 2021) [2023] KEHC 171 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 171 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E152 of 2021
GL Nzioka, J
January 4, 2023
Between
Peter Matheri Macharia
Applicant
and
Republic
Respondent
Ruling
1. By an application filed in court on October 5, 2021, the applicant is seeking for review of the sentence meted against him vide Criminal Case S/O No. 34 of 2016, 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 section 333(2) of the Criminal Procedure Code. The application is supported by an affidavit sworn by the applicant
2. The application was served but no response was filed. 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 incest contrary to section 20 of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to section 11 of the said Act. He was subsequently convicted on the main count and sentenced to serve thirty (30) years imprisonment.
3. However, he appealed against the decision vide High Court Criminal Case No. 24 of 2017, wherein the court remitted the matter to the trial court for resentencing. I note that, there is no indication that, the re-sentencing has been done.
4. As such, the application herein for review of the thirty (30) years sentence amounts to an abuse of the court process, and the court is functus officio, in relation to thesubject sentence. In that regard, the Court of Appeal in the case of; Telkom Kenya Limited vs John Ochanda [2014] eKLR, stated that:“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.”
5. The upshot thereof is, I find and hold that, this court is functus officio and strike out the current application and/or dismiss it for 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