[2024] KEHC 11678 (KLR)
The court found that the applicant had previously filed Petition No. E021/2021 before the same court, raising the same issues as in the current application, notwithstanding that the present application was styled as a revision. That petition was determined on 30/5/2024. The applicant then filed the current...
Source-derived case information.
- Citation
- [2024] KEHC 11678 (KLR)
- Parties
- Applicant: Shaban Odongo Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E005 of 2023
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application struck out as abuse of process
- Judges
- SC Chirchir
- Legal Topics
- Sentence Reduction, Abuse of Court Process, Functus Officio, Pending Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shaban Odongo Makokha
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the court can entertain a criminal revision application seeking sentence reduction when a similar petition was previously determined.
- 2 Whether the court is functus officio in light of a pending appeal and prior determination of similar issues.
- 3 Whether filing similar applications in different courts constitutes an abuse of court process.
Ratio Decidendi
The court found that the applicant had previously filed Petition No. E021/2021 before the same court, raising the same issues as in the current application, notwithstanding that the present application was styled as a revision. That petition was determined on 30/5/2024. The applicant then filed the current application before the Voi High Court while the earlier petition was still pending. The court held that if the applicant was dissatisfied with the outcome in Petition E021/2021, the proper recourse was to appeal to the Court of Appeal, not to file a fresh application in another court. The pursuit of two applications seeking similar prayers in different courts was deemed an abuse of the...
Court Disposition
application struck out as abuse of process
Orders
- The application filed on 20/3/2023 is struck off.
Full Case Text
Judgment text and source record
24 paragraphs
Makokha v Republic (Criminal Revision E005 of 2023) [2024] KEHC 11678 (KLR) (26 September 2024) (Ruling)
Neutral citation: [2024] KEHC 11678 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Revision E005 of 2023
SC Chirchir, J
September 26, 2024
Between
Shaban Odongo Makokha
Applicant
and
Republic
Respondent
Ruling
1. The Petitioner herein filed this petition before the High Court in Voi.
2. Justice Dulu forwarded the file to this court upon noticing that the primary case emanated from the Chief Magistrate’s Court at Mumias which is within the supervision of this court.
3. The petitioner is seeking for reduction of sentence ,and further to have his sentence reduced by the number of years he had spent in custody during trial.
4. He has stated that his appeal to the High Court was dismissed but there was a pending appeal before the Court of Appeal which he intends to withdraw.
5. The Respondent opposes the Application.
6. It is the Respondent’s case that this court is functus officio; that the Applicants has a pending Appeal and therefore it is premature to raise constitutional questions.
7. A perusal of past matters in this court shows that the petitioner had previously filed Kakamega High Court Petition No. E021/2021. The issues were the same, notwithstanding that the present application has been christened a revision. That petition was determined on 30/5/2024. It is apparent that the Applicant had filed this Application before Voi High Court while Petition No. E02 of 2021 was pending before this court.
8. Petition No. E02/2021 was raising the same issues as aforesaid. If the Applicant was dissatisfied with the outcome in Petition E02/2021 he ought to have moved to the Court of Appeal.
9. A pursuit of two Application seeking similar prayers in two different courts is clearly an abuse of the court process by the Applicant consequently the Application filed on 20/3/2023 is hereby struck off.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 26TH DAY OF SEPTEMBER 2024. S. CHIRCHIRJUDGE.In presence of:-Godwin Luyundi – Court AssistantThe petitioner.Ms. Osoro for DPP