[2020] KEHC 2110 (KLR)
The High Court held that it was functus officio after having dismissed the applicant's appeal against conviction and sentence. Since the applicant had already filed a notice of appeal to the Court of Appeal, the High Court lacked jurisdiction to entertain the resentencing application. Entertaining the application...
Source-derived case information.
- Citation
- [2020] KEHC 2110 (KLR)
- Parties
- Applicant: Mohammed Idd Kioko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 55 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Re Sentencing Application After Conviction and Dismissal of Appeal
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Defilement Offence, Sentencing Principles, Functus Officio Doctrine
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Idd Kioko
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Re Sentencing Application After Conviction and Dismissal of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain a re-sentencing application after it has already dismissed an appeal and the matter is pending before the Court of Appeal.
- 2 Whether the doctrine of functus officio bars the High Court from considering the applicant's resentencing application.
Ratio Decidendi
The High Court held that it was functus officio after having dismissed the applicant's appeal against conviction and sentence. Since the applicant had already filed a notice of appeal to the Court of Appeal, the High Court lacked jurisdiction to entertain the resentencing application. Entertaining the application would amount to concurrent handling 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. Accordingly, the application for resentencing was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The applicant's application for resentencing filed on 5.6.2020 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. 55 OF 2020
MOHAMMED IDD KIOKO...............................APPLICANT
VERSUS
REPUBLIC......................................................RESPONDENT
RULING ON RE-SENTENCING
1. Mohammed Idd Kioko, the Applicant herein was charged with an offence of 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 sentenced 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 judgment was delivered on 24. 7.2018 by this court. The appeal was dismissed and the conviction and sentence was upheld.
4. The Applicant did file a notice of appeal on 4. 9.2018 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 resentencing pursuant to the decision in Francis Karioko Muruatetu & Another v R (2017) eKLR
5. From the import of the functus officio doctrine this court cannot consider the application for 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. Most importantly the matter is already in the Court of Appeal and handling the application on its merits would be tantamount to concurrent handling of the same matter in two different courts and a disregard for the hierarchy of courts. There is no known law that affords this court with the 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. The applicant having exhausted his appeal before this court and proceeding to prefer an appeal to the Court of Appeal is barred by the doctrine of functus officio as this court is no longer seized with jurisdiction to handle the matter. The applicant should now proceed to the appellate court for redress where his appeal is pending determination.
8. The upshot of the foregoing observations is that the Applicant’s application filed on 5. 6.2020. lacks merit. The same is dismissed.
It is so ordered.
Dated and delivered at Machakos this 29th day of October, 2020.
D. K. Kemei
Judge