https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12848

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CRIMINAL APPEAL NO. E141 OF 2024** **ENOCK MOGIRE MOOCHA.................................................APPLICANT/APPELLANT** **VERSUS** **REPUBLIC......................................................................................................RESPONDENT** **RULING** **Introduction** 1. The Applicant filed an application seeking review of the judgment delivered in this appeal on 28th May 2024. The Applicant, Enock Mogire Moocha, was the appellant in this appeal. 2. The background is not in dispute. The Applicant was charged before the Senior Principal Magistrate’s Court at Ogembo in Criminal Case No. E1193 of 2022 with seven counts of burglary and stealing contrary to sections 304(2) and 279(b) of the Penal Code. 3. Upon trial, he was convicted on all the seven counts. He was sentenced to two years’ imprisonment on each count. The trial court ordered the sentences to run consecutively, thereby resulting in an aggregate sentence of fourteen years’ imprisonment. 4. Aggrieved by both conviction and sentence, the Applicant lodged Kisii High Court Criminal Appeal No. E038 of 2023 which was dismissed on 28th May 2024. 5. The Applicant has now returned to this Court seeking review of that judgment and/or sentence. From the tenor of the application, the Applicant essentially invites this Court to reconsider the sentence, particularly the order that the sentences run consecutively. **The Issue for Determination** 1. The single issue that arises for determination is whether this Court has jurisdiction, in the circumstances of this matter, to review its judgment delivered in a criminal appeal and, if so, whether a basis for review has been established. **Analysis** 1. Jurisdiction is everything. Without it, a court must down its tools. This principle was firmly stated in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, where the Court of Appeal held that jurisdiction is the authority upon which a court proceeds, and where it is absent, the court has no power to take any further step. 2. The Applicant’s present application must therefore be examined from the point of jurisdiction. This Court heard and determined the Applicant’s appeal. It exercised its appellate jurisdiction, considered the conviction and sentence, and rendered a final judgment. Once that judgment was delivered, this Court became **functus officio** in respect of the merits of the appeal. 3. The doctrine of functus officio is founded on the public policy that litigation must come to an end. In **Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR**, the Court of Appeal stated that once a court has performed its function and rendered a final decision, it has no authority to reopen the matter except as permitted by law. 4. The same principle was restated by the Supreme Court in **Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR**, where the Court explained that a court becomes functus officio once it has fully discharged its adjudicative function, save for limited residual powers such as correcting clerical errors or accidental slips. 5. In criminal proceedings, the High Court has revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code. However, that jurisdiction is intended to correct illegalities, improprieties, irregularities or incorrectness in proceedings before subordinate courts. It is not a mechanism through which the High Court reviews its own final appellate judgment on the merits. 6. Section 364(5) of the Criminal Procedure Code further makes clear that where an appeal lies and has been taken, revision cannot be used as a disguised second appeal or as a backdoor route to re-open issues already determined on appeal. 7. The Applicant’s grievance is not that there is an accidental slip, arithmetic error, clerical mistake, or an illegal sentence apparent on the face of the record. Rather, he seeks a reconsideration of a sentence that was expressly challenged in the appeal, considered by this Court, and upheld. That is not review. It is an invitation to sit on appeal over a judgment of a court of concurrent jurisdiction. 8. This Court cannot do so. If the Applicant was aggrieved by the judgment delivered on 28th May 2024, his remedy lay in an appeal to the Court of Appeal, subject to the applicable law and procedure. A review application before the same Court cannot be used to relitigate matters that have already been determined. 9. What the Applicant seeks is a rehearing of the appeal on sentence. This Court lacks jurisdiction to grant that relief. **Disposition** 1. For the foregoing reasons, I find that the application for review is without merit. This Court is functus officio in respect of the judgment delivered on 28th May 2024. Case may be reviewed. 2. The application for review is hereby dismissed. 3. Orders accordingly. **DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 20TH DAY OF MAY 2026 IN THE ABSENCE OF THE APPLICANT, MR KOIMA FOR PROSECUTION & CA KIPCHIRCHIR .** **T. A. ODERA JUDGE** **20.5.26**