[2022] KEHC 207 (KLR)
The High Court held that it could not determine its jurisdiction to revise the applicant's sentence in the absence of the original trial court file and the withdrawal letter from the Court of Appeal. The court noted that several requests for the return of the lower court file had not been responded to, making it...
Source-derived case information.
- Citation
- [2022] KEHC 207 (KLR)
- Parties
- Applicant: Kyalo Musyoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Revision Case 201 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- MW Muigai
- Legal Topics
- Sentence Revision, Jurisdiction of High Court, Functus Officio, Appeal Withdrawal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kyalo Musyoka
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to revise the applicant's sentence in the absence of the original trial court file and withdrawal letter from the Court of Appeal.
- 2 Whether the High Court is functus officio in relation to the applicant's conviction and sentence.
Ratio Decidendi
The High Court held that it could not determine its jurisdiction to revise the applicant's sentence in the absence of the original trial court file and the withdrawal letter from the Court of Appeal. The court noted that several requests for the return of the lower court file had not been responded to, making it impossible to proceed. Furthermore, the respondent's submissions confirmed that the matter had already been heard and determined by a judge of concurrent jurisdiction. As such, the court found itself functus officio and dismissed the application for revision, directing the applicant to pursue an appeal in the Court of Appeal if so advised.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
- The applicant is advised to pursue an appeal in the Court of Appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Musyoka v Republic (Revision Case 201 of 2020) [2022] KEHC 207 (KLR) (15 March 2022) (Ruling)
Neutral citation: [2022] KEHC 207 (KLR)
Republic of Kenya
In the High Court at Machakos
Revision Case 201 of 2020
MW Muigai, J
March 15, 2022
Between
Kyalo Musyoka
Applicant
and
Republic
Respondent
Ruling
1. The Applicant herein was charged in Machakos Criminal Case No. 14 of 2011 for the offence of murder contrary to section 203 as read with section 204 of the Penal Code and convicted to a sentence of Twenty five (25) years imprisonment on 16/01/2019.
2. Aggrieved by the sentence he filed his Appeal in Court of Appeal and according to the Court Record the original file was forwarded to the Court of Appeal Registry and received on 16/10/2019.
3. The Applicant on 13th July, 2020 filed in Court a Petition under certificate of urgency seeking revision of the sentence passed upon him at on 16/01/2019 seeking the following prayers:-a.That Revision of his sentence based on article and section 50(2) (q) of the Constitution of Kenya (2010) and section 264 of the Criminal Procedure Code Cap 75 Laws of Kenya.b.That this Court has unlimited powers to hear and determine this matter, under Article 165 (30)(b) of the Constitution of Kenya.c.That the Court orders that he serves part of the reminder of the sentence on probation services under community service order (SO) or any other term.d.That he appears before court to raise grounds orally.e.That since he is a convict he is a pauper who cannot afford to raise requisite fee for preparation of these records thereafter prays that some be waived.
4. On 30/09/2020 he appeared in Court for the Mention of this Application and he told the court that he needs to file a notice of withdrawal of his Appeal so as to enable him prosecute this Application subject of these proceedings. He asked the Court to grant him leave of one month to do so a prayer which was granted by the Court.
5. His notice of withdrawal of his case from Court of Appeal dated 23rd February, 2021 was filed in this Court on 8th March, 2021.
6. According to the Court Record the original file Machakos Cr. Case No. 14 of 2011 was forwarded to the Court of Appeal Registry and received on 16th October, 2019 for the purposes of the said Appeal and the same has not been returned on this side yet.
7. Several requests to the Court of Appeal Registry for the lower Court file to be returned have not been responded to hence the Court is not able to prosecute this matter thereof.SUBMISSIONS
8. On 4th November, 2021 both the Applicant and the Respondent were ordered to file their written submissions.
9. The Applicant filed his submissions on 22/02/2022. He submitted that the Court review his sentence in this matter pursuant to the laid down mitigation; that he greatly regret the ordeal and the incident in question; that he is remorseful.
10. The Respondent filed their submissions on 7th February, 2022 and submitted that this court is functus officio.DECISION:At this stage it is not possible to determine the Court’s jurisdiction with regard to the instant application in the absence of the mentioned withdrawal letter of 23/02/2021 and in the absence of the Original Record Court file Machakos Criminal Case No. 14 of 2011. The Respondents written submissions indicates and confirms that the matter was heard in this Court by Hon. Justice Kemei.Therefore this Court has equal, similar, concurrent and competent jurisdiction as Hon. D. Kemei – Trial Judge. The Applicant to pursue an Appeal in Court of Appeal and the Revision is dismissed.
DELIVERED SIGNED & DATED IN OPEN COURT ON 15TH MARCH, 2022 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE