[2023] KEHC 2582 (KLR)
Although section 333(2) of the Criminal Procedure Code requires the trial court to consider the period spent in remand custody, once the court has pronounced sentence, it becomes functus officio and lacks jurisdiction to review or alter its own sentence. Therefore, the application for review is incompetent and must...
Source-derived case information.
- Citation
- [2023] KEHC 2582 (KLR)
- Parties
- Applicant: Kitengu Mukiti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E032 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- JN Onyiego
- Legal Topics
- Sentencing Review, Remand Custody Period, Functus Officio, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitengu Mukiti
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the trial court can review its own sentence to account for the period spent in remand custody.
- 2 Whether failure to consider remand custody period under section 333(2) of the Criminal Procedure Code renders the sentence unlawful.
- 3 Whether the court is functus officio after sentencing.
Ratio Decidendi
Although section 333(2) of the Criminal Procedure Code requires the trial court to consider the period spent in remand custody, once the court has pronounced sentence, it becomes functus officio and lacks jurisdiction to review or alter its own sentence. Therefore, the application for review is incompetent and must be dismissed as the court cannot grant the orders sought.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Mukiti v Republic (Miscellaneous Criminal Application E032 of 2021) [2023] KEHC 2582 (KLR) (29 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2582 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E032 of 2021
JN Onyiego, J
March 29, 2023
Between
Kitengu Mukiti
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein was charged with the offence of murder contrary to section 203 as read out with section 204 of the penal code. Having returned a plea of not guilty, the matter proceeded to full trial.
2. Upon conclusion of the trial, the applicant was found guilty and accordingly sentenced to serve 25 years’ imprisonment on the 28-2-2019.
3. The applicant has however moved this court under what he refers to as a petition which is not dated but filed on 15-12-2021 seeking review of the sentence to take into account the period spent in remand custody.
4. In response, the state/ respondent filed grounds of opposition dated 7-6-2022 opposing the application on grounds that it is incompetent, lacks merit; the court is functus officio and that, the sentence is well within the law.
5. I have considered the application herein and the response thereto. It is trite law that under section 333 (2) of the Criminal Procedure Codea trial court ought to consider the period spent in remand custody by an accused person before pronouncing sentence.
6. Although in this case section 333 (2) of the Criminal Procedure Code was not complied with, this court being the trial court cannot review its own sentence as it is functus officio. Accordingly, the orders sought cannot apply. Consequently, the application before this court is incompetent hence dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS…29TH …… DAY OF MARCH, 2023. J. N. ONYIEGOJUDGEIn the Presence of:ApplicantMr. Kihara for the state.Martin/ Mohamed- Court Assistants.J. N. ONYIEGOJUDGE