[2025] KEHC 74 (KLR)
The High Court held that it had already determined the applicant's request for review of sentence in a previous petition, and the applicant was seeking the same reliefs based on the same grounds. The doctrine of functus officio barred the court from revisiting the matter, as it had become final and the applicant's...
Source-derived case information.
- Citation
- [2025] KEHC 74 (KLR)
- Parties
- Applicant: Saleh Nicola Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E009 of 2014
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application struck out as an abuse of process; court functus officio
- Judges
- SC Chirchir
- Legal Topics
- Review of Sentence, Robbery With Violence, Functus Officio, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saleh Nicola Makokha
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence for robbery with violence after prior dismissal of similar applications.
- 2 Whether the doctrine of functus officio bars the court from entertaining a repeat application for review of sentence on the same grounds.
- 3 Whether the Supreme Court decision in Francis Muruatetu applies to sentences for robbery with violence.
Ratio Decidendi
The High Court held that it had already determined the applicant's request for review of sentence in a previous petition, and the applicant was seeking the same reliefs based on the same grounds. The doctrine of functus officio barred the court from revisiting the matter, as it had become final and the applicant's remedy lay in appealing the previous decision, not filing a fresh application. Furthermore, the Supreme Court's decision in Muruatetu was expressly limited to mandatory death sentences for murder under section 204 of the Penal Code and did not extend to sentences for robbery with violence. The court found that the repeated filing of similar applications constituted an abuse of...
Court Disposition
application struck out as an abuse of process; court functus officio
Orders
- The Notice of Motion dated 8th January 2024 is hereby struck off.
Full Case Text
Judgment text and source record
23 paragraphs
Makokha v Republic (Miscellaneous Criminal Application E009 of 2014) [2025] KEHC 74 (KLR) (16 January 2025) (Ruling)
Neutral citation: [2025] KEHC 74 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E009 of 2014
SC Chirchir, J
January 16, 2025
Between
Saleh Nicola Makokha
Applicant
and
Republic
Respondent
Ruling
1. Through the Notice of Motion dated 8th January 2024, the Applicant herein seeks for review of his sentence meted out to him following a conviction on a charge of robbery with violence in Kakamega Chief Magistrate’s court criminal case no. 2447 of 2004.
2. He appealed to the high court in Kakamega in criminal Appeal No. 141 of 2010. The Appeal was dismissed on both conviction and sentence. His second Appeal to the court of Appeal at Kisumu in CACRA NO. 45 of 2013 , suffered the same fate.
3. Undeterred, he filed petition No. 63 of 2019 before the high court in Kakamega ,seeking for review of sentence , basing his petition on the supreme court’ s decision on the case of Francis Muruatetu & Ano vs Republic (2017)e KLR which declared mandatory minimum sentence under section 204 of the penal code ,unconstitutional.
4. In a Ruling delivered on 26th August 2021, Justice Musyoka dismissed the petition . In dismissing the petition, the Judge stated that , the supreme court confined their declaration of unconstitutionality of the death sentence to only section 204 of the penal code, that is in relation to the offence of murder and not any other offences. Consequently, he held , this court has no jurisdiction to review any sentences passed in respect to offences of robbery with violence or attempted robbery with violence.
5. The Applicant is back in this court through the present Application. This time under the guise of Miscellaneous Application, but seeking the same prayers he was seeking in petition No. 63 of 2019, that is, seeking for a review of sentence.
6. This court therefore has adjudicated on the same prayers before and made a decision. It cannot revisit the matter again as it has become functus officio. If the Applicant was dissatisfied with the orders of Justice Musyoka made on 26th August 2021, his remedy was to move to the court of Appeal.
7. This “lying low” for a few years , then coming back to the same court or a court with concurrent jurisdiction, seeking the same prayers , and hoping to get a different result, is an abuse and misuse of the court process.
8. Consequently, the Notice of Motion dated 8th January 2024 is hereby struck off.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 16TH DAY OF JANUARY 2025. S. CHIRCHIRJUDGE.In the presence of :Godwin Luyundi- Court Assistant.Saleh Nicola- The ApplicantMs .Kagai for the Respondent.