[2020] KEHC 2233 (KLR)
The High Court held that it was functus officio after having determined the applicant's appeal against conviction and sentence, and that the applicant's subsequent notice of appeal to the Court of Appeal divested the High Court of jurisdiction to entertain the resentencing application. Entertaining the application...
Source-derived case information.
- Citation
- [2020] KEHC 2233 (KLR)
- Parties
- Applicant: Michael Kyalo Munyao; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 114 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Defilement Offence, Sentencing Review, Functus Officio Doctrine
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kyalo Munyao
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence the applicant after the matter is pending before the Court of Appeal.
- 2 Whether the doctrine of functus officio bars the High Court from entertaining the resentencing application.
Ratio Decidendi
The High Court held that it was functus officio after having determined the applicant's appeal against conviction and sentence, and that the applicant's subsequent notice of appeal to the Court of Appeal divested the High Court of jurisdiction to entertain the resentencing application. Entertaining the application would amount to concurrent consideration of the same matter in two different courts, contrary to the hierarchy of courts and the doctrine of functus officio. The proper forum for the applicant's request for resentencing is the Court of Appeal, where his appeal is pending. Consequently, the application for resentencing was dismissed for lack of merit and want of jurisdiction.
Court Disposition
application dismissed
Orders
- The applicant's application for resentencing filed on 31.7.2019 is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Coram: D. K. Kemei - J
MISCELLANEOUS CRIMINAL APPL. NO. 114 OF 2019
MICHAEL KYALO MUNYAO...............APPLICANT
VERSUS
REPUBLIC............................................RESPONDENT
RULING ON RESENTENSING
1. Michael Kyalo Munyao, the Applicant herein was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.
2. The Applicant pleaded not guilty and the case proceeded to full hearing. He was convicted of the main count and that the trial court sentenced him to serve life imprisonment.
3. The Applicant was aggrieved by that decision and filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgement was delivered on 29. 11. 2018 by this court. The judgement dismissed the appeal and upheld both the conviction and sentence.
4. The Applicant did file a notice of appeal on 18. 12. 2018 with intention to file a 2nd appeal against the decision of the High Court to the Court of Appeal. In addition, the applicant did file a new Application before this court in which he seeks review of sentence pursuant to the decision in Evans Wanjala Wanyonyi (2019) eKLR and Francis Karioko Muruatetu & Another v R (2017) eKLR
5. From the import of the functus officio doctrine the applicant is not entitled to resentencing.
6. Once a court becomes functus officio, the only orders it can grant are review orders which are an exception to the functus officio doctrine. The Supreme Court in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR stated that:
“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
7. Because the matter is already in the Court of appeal and handling the application on its merits would be tantamount to concurrent consideration of the same matter in two different courts and a disregard for the hierarchy of courts. This court has no jurisdiction to supervise a superior court. In this regard the applicant’s application ought to be directed to the Court of Appeal where his appeal is pending consideration.
8. The upshot is that the applicant’s application filed on 31. 7.2019 seeking for resentencing lacks merit. The same is dismissed.
It is so ordered.
Dated and delivered at Machakos this 27th day of October, 2020.
D. K. Kemei
Judge