[2023] KEHC 857 (KLR)
The High Court held that it had already determined the applicants' criminal appeals and rendered a final decision, thereby becoming functus officio. As a result, it lacked jurisdiction to entertain the subsequent applications for review of sentence, including any plea based on section 333(2) of the Criminal...
Source-derived case information.
- Citation
- [2023] KEHC 857 (KLR)
- Parties
- Applicant: Simon Wambugu Ndungu; Applicant: Francis Maina Macharia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E192 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- applications struck out for want of jurisdiction
- Judges
- GL Nzioka
- Legal Topics
- Robbery With Violence, Sentencing Review, Functus Officio, Sexual Offences, Criminal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Wambugu Ndungu
Applicant
Francis Maina Macharia
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicants' sentences after having already determined their criminal appeals.
- 2 Whether the principle of functus officio bars the court from entertaining the application for sentence review.
- 3 Whether section 333(2) of the Criminal Procedure Code can be invoked in the circumstances.
Ratio Decidendi
The High Court held that it had already determined the applicants' criminal appeals and rendered a final decision, thereby becoming functus officio. As a result, it lacked jurisdiction to entertain the subsequent applications for review of sentence, including any plea based on section 333(2) of the Criminal Procedure Code. The applications were therefore struck out for want of jurisdiction and/or being an abuse of the court process.
Court Disposition
applications struck out for want of jurisdiction
Orders
- The applications for review of sentence are struck out for want of jurisdiction and/or being an abuse of the court process.
Full Case Text
Judgment text and source record
24 paragraphs
Ndungu & another v Republic (Miscellaneous Criminal Application E192 & 193 of 2021 (Consolidated)) [2023] KEHC 857 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 857 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E192 & 193 of 2021 (Consolidated)
GL Nzioka, J
January 4, 2023
Between
Simon Wambugu Ndungu
1st Applicant
Francis Maina Macharia
2nd Applicant
and
Republic
Respondent
Ruling
1. The applicants filed two similar chamber summons applications on the November 30, 2011 seeking for review of the sentence meted out against them vide Criminal Case No 512 of 2017, at the Chief Magistrate’s Court at Naivasha.
2. The applicants were arraigned before the Chief Magistrate’s Court charged in two (2) counts with of the offences of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. The applicant was charged with a further offence in the 3rd count the offence of sexual assault contrary to section 5(1)(a)(i)(2) of the Sexual Offences Act. The applicants were subsequently convicted with robbery with violence and sentenced to suffer death.
3. The applicants argue that the mandatory death sentence deprive the court legitimate jurisdiction to exercise discretion during sentencing and renders mitigation under section 216 of the Criminal Procedure Code ineffective. As such, the court be pleased to revise the sentence, and take into account the provisions of section 333(2) of the Criminal Procedure Code.
4. The applications were served but no response was filed. However, I note from the materials placed before the court that, subsequent to the decision of the trial court, the applicants appealed against the decisionvide High Court criminal appeal No 37 and 38 of 2019, but the appeals were dismissed in their entirety (December 16, 2020. The 1st applicant then moved to the Court of Appeal, but, according to him, he withdrew the appeal.
5. In my considered opinion, this court once heard the appeal in this matter and rendered a final decision, this court became functus officio. The principle of functus officio is a latin expression that translates to; “having performed the function of his or her office, the decision maker has no power to re-open the matter”
6. In that regard even plea to review the sentence herein based on the provision of section 333 (2) of the Criminal Procedure Code is not tenable, Therefore I strike out the application herein accordingly for want of jurisdiction and/or for being an abuse of the court process.
7. It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF JANUARY 2023GRACE L NZIOKAJUDGEIn the presence of:Applicant in person virtuallyMr. Ndiema for the RespondentMs. Ogutu Court Assistant