[2022] KEHC 1254 (KLR)
The High Court held that it is functus officio and cannot review its own decision after conviction and sentencing. The issues raised by the petitioner regarding alleged breaches of constitutional rights and non-compliance with Section 333(2) of the Criminal Procedure Code were deemed to have been considered during...
Source-derived case information.
- Citation
- [2022] KEHC 1254 (KLR)
- Parties
- Applicant: Martin Owuor John; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Petition 001 of 2022
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- RPV Wendoh
- Legal Topics
- Manslaughter Sentencing, Right to Equality, Right to Fair Trial, Functus Officio, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Owuor John
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the High Court breached Articles 27(1) and 50(2)(p) of the Constitution in sentencing the petitioner.
- 2 Whether the High Court failed to comply with Section 333(2) of the Criminal Procedure Code during sentencing.
- 3 Whether the High Court can review its own decision after conviction and sentencing.
Ratio Decidendi
The High Court held that it is functus officio and cannot review its own decision after conviction and sentencing. The issues raised by the petitioner regarding alleged breaches of constitutional rights and non-compliance with Section 333(2) of the Criminal Procedure Code were deemed to have been considered during the trial and sentencing. The proper avenue for challenging the conviction or sentence is by appeal to the Court of Appeal, not by petition before the same court. Consequently, the petition was found to lack merit and was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed for lack of merit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
PETITION NO. E 001 OF 2022
MARTIN OWUOR JOHN........................APPLICANT
Versus
REPUBLIC............................................RESPONDENT
JUDGMENT
The Petitioner MartinOwuor Johnwas on 25/11/2017 convicted by Mrima J, for the offence of manslaughter contrary to Section 202 of the Penal Code and sentenced to ten (10) years imprisonment.
The Petitioner has now come back before the same High Court seeking an order that the court breached Articles 27(1), 50 (2)(p) of the Constitution and did not comply with Section 333 (2) of the Criminal Procedure Code.
Article 27(1) provides as follows:-
“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”
Article 50 (2) p provides as follows:-
“To the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishments for the offence has been changed between the time that the offence was committed and the time of sentencing.”
Section 333 (2) Criminal Procedure Code as follows: -
“In any case in which an order for the payment of money has been made, on non-recovery of which imprisonment may be awarded, and the money is not paid forthwith, the court may require the person ordered to make payment to enter into a bond as prescribed in subsection (1), and on default of his so doing may at once pass sentence of imprisonment as if the money had not been recovered.”
Even without going into the merits of the above provisions, I have considered the records of the proceedings before J. Mrima. The petitioner was represented by Mr. Abisai Advocate. He never raised the above issues during trial.
The Petitioner cannot purport to come back before the same court for review of the court’s orders. If he is aggrieved by the decision of J. Mrima, his recourse is to file an appeal to the Court of Appeal because this court is funtus officio this matter.
The issues he raises are deemed to have been considered by the trial court, during the trial and when sentencing. The court cannot write down each and everything that it takes into account when sentencing.
This court cannot sit on appeal on the decision of J. Mrima who presides over a court of concurrent jurisdiction. I find that the petition lacks merit and is hereby dismissed.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 24TH DAY OF MARCH, 2022
R. WENDOH
JUDGE
Judgment delivered in the presence of:
Mr. Maatwa for the Respondent
Appellant present
Nyauke court Assistant