[2022] KEHC 16493 (KLR)

Nderitu v Republic (Miscellaneous Criminal Application E189 of 2021) [2022] KEHC 16493 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16493 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application E189 of 2021

GL Nzioka, J

December 8, 2022

Between

Moses Kagunya Nderitu

Applicant

and

Republic

Respondent

Ruling

1. By an application filed in court on November 29, 2021, the applicant is seeking for review of the sentence meted upon him vide Chief Magistrate’s Criminal Case No 2056 of 2014, at Naivasha. He prays that, the court be pleased to revise the sentence to a lenient definite sentence and take into account the provisions of; section 333(2) of the Criminal Procedure Code.

2. The application is supported by the applicant’s affidavit, wherein he deposes that, the mandatory nature of the death sentence has been declared unconstitutional, and that his right to mitigate under section 216 of theCriminal Procedure Codehas similarly been rendered ineffective.

3. The application was served but no response was filed. I however, note from the materials placed before the court that the applicant was arraigned before the Chief Magistrate’s Court charged with the offence of robbery with violence contrary to section 295 as read with 296 (2) of the Penal Code. He was subsequently convicted and sentenced to suffer death.

4. However, being aggrieved with the decision of the trial court, he appealed against it vide High Court Criminal Case No 8 of 2016, but the appeal was dismissed for lack of merit. The applicant has now filed the current application for sentence review.

5. In my considered opinion, once the appeal was heard in this court and a final decision rendered, this court became functus officio. The principle of functus officio is a Latin expression that translates to; “having performed his or her office” the power to act ends. According to Ulpian, after a judge has delivered his judgment, he immediately ceases to be the judge:“hoc jure utimur ut judex qui semel vel pluris vel minoris condemnavit, amplius corrigere sententiam suam non posset; semel enim male vel bene officio functus est.” (see Alexandr Koptev, “Digestae Justinian” The Latin Library at Book 42, Title 1, Note 55, online:The gist of Ulpian’s words is: “[A] judge who has given judgment, either in a greater or a smaller amount, no longer has the capacity to correct the judgment because, for better or for worse, he will have discharged his duty once and for all.” (see Translation in Daniel Malan Pretorius, “The Origins of the Functus Officio Doctrine, with Specific Reference to Its Application in Administrative Law” (2005) 122:4 SALJ 832 at 836).

6. The law of functus officio thus dictates that, decision-makers; judges, administrative officials, or arbitrators, cannot as a general rule re-open their decisions to correct a mistake. There is no opportunity for them to; “do better next time” in the same case because there will be no next time. They must get it right the first time, for that will be their only time.

7. Further, in the Journal by the University of Queensland, on “The Finality of Judicial Decisions”, it is stated that, a court becomes functus officio in the following events;a)A judicial tribunal, becomes functus officio in respect of decisions made by it before it becomes defunct;b)The judicial tribunal's powers to revise its own decisions or to re-try any case after decisions made by it in the original trial have been rescinded.

8. In the same vein, the Court of Appeal in the case of; Telkom Kenya Limited v John Ochanda[2014] eKLR, stated that:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar; is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”

9. The High Court having heard the appeal, the court is functus officio, and therefore the application herein is struck out accordingly for want of jurisdiction.

10. It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 8TH DAY OF DECEMBER, 2022GRACE L NZIOKAJUDGEIn the presence of:Applicant in personMr. Ndiema for the RespondentMs Ogutu: Court Assistant