[2023] KEHC 26129 (KLR)
The High Court determined that it lacks jurisdiction to entertain the applicant's request for sentence reduction because the applicant's appeal had already been heard and dismissed by a court of similar jurisdiction (the High Court in HCCRA No. 86 of 2013). Entertaining the application would amount to the court...
Source-derived case information.
- Citation
- [2023] KEHC 26129 (KLR)
- Parties
- Applicant: Victor Rotich Naibei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E089 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Sentence Revision, Jurisdiction of High Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Victor Rotich Naibei
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to revise the applicant's sentence after dismissal of his appeal.
- 2 Whether the application for sentence reduction constitutes an abuse of court process.
Ratio Decidendi
The High Court determined that it lacks jurisdiction to entertain the applicant's request for sentence reduction because the applicant's appeal had already been heard and dismissed by a court of similar jurisdiction (the High Court in HCCRA No. 86 of 2013). Entertaining the application would amount to the court sitting on appeal or revision over its own decision, which is prohibited by law and the doctrine of functus officio. The court found that the applicant's only recourse is to appeal to the Court of Appeal. Accordingly, the application was dismissed as an abuse of the court process.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
- The file is closed.
Full Case Text
Judgment text and source record
18 paragraphs
Naibei v Republic (Miscellaneous Application E089 of 2021) [2023] KEHC 26129 (KLR) (16 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26129 (KLR)
Republic of Kenya
In the High Court at Bungoma
Miscellaneous Application E089 of 2021
REA Ougo, J
November 16, 2023
Between
Victor Rotich Naibei
Applicant
and
Republic
Respondent
Ruling
1. Victor Rotich Naibei, the applicant, is seeking a revision of his sentence in respect of the defilement case against him. He was sentenced to serve 20 years imprisonment. He avers as follows in his affidavit in support of his application; that he was tried and convicted and sentenced to serve 20 years imprisonment. His wife who was convicted with him was sentenced to serve 10 years imprisonment. He is a father of two and their children are currently staying with their grandparents hence lacking parental care. He is seeking a reduction of his sentence or non-custodial sentence. He prays that the court considers the time spent in remand.
2. The application was opposed. Miss Omondi submitted that the applicant was convicted and sentenced. His appeal was dismissed and conviction upheld. He is back in court for re-sentencing. That this court lacks the jurisdiction to determine the application as a court of similar jurisdiction heard his appeal. That is his application has merit and has a high chance of success based on the Constitution.
3. I have considered the application and oral submissions. The applicant filed an appeal in HCCRA No. 86 of 2013. His appeal was dismissed and he is back again in the High Court seeking a reduction of his sentence. I agree with the respondent that this court lacks the jurisdiction to hear his application for reduction of his sentence. This is an abuse of the court process. His only recourse is to appeal to the Court of Appeal. I therefore find no merit in the application and dismiss it. The file is closed.
DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 16TH DAY OF NOVEMBER 2023. R.E. OUGOJUDGEIn the presence of:Victor Rotich Naibei/Applicant - PresentMiss Omondi - For the Respondent - Present