[2024] KEHC 15554 (KLR)
The High Court held that it was functus officio in respect of the applicant's case, having already determined his appeal and with the Court of Appeal having dismissed the subsequent appeal. The court emphasized that it cannot sit on its own appeal or purport to review a matter it has already decided, as this would...
Source-derived case information.
- Citation
- [2024] KEHC 15554 (KLR)
- Parties
- Applicant: Vincent Onyango Musingo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E005 of 2024
- Procedural Posture
- Criminal Petition / Sentence Review After Exhaustion of Appeals
- Outcome
- Application dismissed.
- Judges
- DK Kemei
- Legal Topics
- Robbery With Violence, Sentence Review, Functus Officio, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Onyango Musingo
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Sentence Review After Exhaustion of Appeals
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after dismissal of his appeals by both the High Court and Court of Appeal.
- 2 Whether the principle of functus officio bars the High Court from entertaining the applicant's current application for sentence review.
Ratio Decidendi
The High Court held that it was functus officio in respect of the applicant's case, having already determined his appeal and with the Court of Appeal having dismissed the subsequent appeal. The court emphasized that it cannot sit on its own appeal or purport to review a matter it has already decided, as this would undermine the finality of judicial decisions and the hierarchy of the court system. The applicant's attempt to seek further review after exhausting all appellate remedies was deemed an abuse of process, and the court declined the invitation to revisit the sentence.
Court Disposition
Application dismissed.
Orders
- The applicant's application for sentence review is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Musingo v Republic (Criminal Petition E005 of 2024) [2024] KEHC 15554 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15554 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Petition E005 of 2024
DK Kemei, J
December 6, 2024
Between
Vincent Onyango Musingo
Applicant
and
Republic
Respondent
Ruling
1. The petitioner herein Vincent Onyango Musingo is a convict who had been charged alongside one Gabriel Omondi for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code vide Ukwala PM’s Criminal Case No. 568/2011. The Petitioner herein was sentenced to serve mandatory death sentence which was later commuted to life imprisonment vide Siaya HC Mis. Criminal Application No. 22 of 2018
2. The Petitioner lodged an appeal to both High Court and Court of Appeal seeking review of sentence and in which both appeals were dismissed.
3. The Petitioner is now back in this court vide this application seeking for further sentence review having exhausted all the appeal avenues. He seeks his sentence be reduced to 20 years’ imprisonment or a lesser one.
4. The Applicant has clearly indicated in his Notice of Motion that he lodged an appeal against the conviction and sentence of the lower court decision in this court and which was dismissed and that he later moved to the Court of Appeal.
5. The Respondent’s counsel opposed the application on the grounds that the applicant had already lodged an appeal at the Court of Appeal rendering this court functus officio.
6. I have considered the Petitioner’s application and the written submissions. Indeed, the Petitioner’s application seeks for revision of sentence. As this court had dealt with the earlier appeal case, it cannot again sit on its own appeal and purport to determine the latest application owing to the principle of functus officio. The conduct in coming back to this court yet it has already determined his appeal must be frowned upon. It seems the Applicant is playing lottery with the courts which cannot be countenanced. The Applicant having exhausted all his appeals must accept the verdict of the court of last resort namely the Court of Appeal. The Applicant must obey the hierarchy of the court system and ought not to make a mockery of the courts. Hence, the invitation by the Applicant to revisit this matter must be rejected.The term “functus” is defined at page 840 of Jowitts Dictionary of English Law 2010 Edition as: -“functus officio (having discharged its duty), an expression applicable to a Judge, magistrate or arbitrator who has given a decision made an order of award so that his authority is exhausted.”
8. In light of the foregoing, it is my finding that the applicant’s application lacks merit. The same is dismissed.
DATED AND DELIVERED AT SIAYA THIS 6TH DAY OF DECEMBER, 2024. D. KEMEIJUDGEIn the presence of:Vincent Onyango…… ApplicantMocha…………… For RespondentOgendo…………… Court Assistant