[2020] KEHC 4232 (KLR)
The court held that it had already considered the period the applicant spent in custody when it delivered its judgment on 11.11.2019 in Criminal Appeal No. 110 of 2017. The applicant did not appeal that decision to the Court of Appeal but instead filed a fresh application seeking review of the sentence on the same...
Source-derived case information.
- Citation
- [2020] KEHC 4232 (KLR)
- Parties
- Applicant: Nicholas Wambua Kitheka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 147 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Legal Topics
- Defilement, Sentencing Review, Functus Officio, Custodial Sentence, Sexual Offences, Criminal Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Wambua Kitheka
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court can review the applicant's sentence after having already determined the issue in a previous appeal.
- 2 Whether the doctrine of functus officio bars the court from entertaining a further application for resentencing on the same grounds.
- 3 Whether the period spent in custody by the applicant has already been considered in the previous judgment.
Ratio Decidendi
The court held that it had already considered the period the applicant spent in custody when it delivered its judgment on 11.11.2019 in Criminal Appeal No. 110 of 2017. The applicant did not appeal that decision to the Court of Appeal but instead filed a fresh application seeking review of the sentence on the same grounds. The court found that it was functus officio and lacked jurisdiction to entertain the application, as the matter had already been determined. Entertaining the application would amount to sitting on appeal over its own decision, which is not permissible. The only available remedy for the applicant was to appeal to the Court of Appeal.
Court Disposition
application dismissed
Orders
- The applicant's application filed on 9.10.2019 is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Coram: D. K. Kemei - J
MISCELLANEOUS CRIMINAL APPL. NO. 147 OF 2019
NICHOLAS WAMBUA KITHEKA.......................APPLICANT
VERSUS
REPUBLIC..........................................................RESPONDENT
RULING
1. Nicholas Wambua Kitheka, the Applicant herein was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act.
2. The Applicant was taken through a full trial and subsequently convicted and sentenced to serve 15 years’ imprisonment.
3. The Applicant was aggrieved by the conviction and sentence and lodged Criminal Appeal No. 110 of 2017 to the High Court in which he contested only on the sentence. The appeal was duly heard. A judgement was delivered on 11. 11. 2019 by this court. The court partially allowed the appeal and directed that the sentence that was meted on the applicant do take into account the period that the applicant spent in custody. The rest of the appeal against the sentence was dismissed.
4. The Applicant did not appeal against the decision of the High Court to the Court of Appeal. He opted to file a new application before this court in which he seeks review of sentence pursuant to the decision in Evans Wanjala Wanyonyi (2019) eKLR. He yet again sought that the time he served in custody be considered pursuant to Section 333(2) of the Criminal Procedure Code. From the import of the functus officio doctrine the applicant is not entitled to resentencing. The issue of time served was duly considered vide the judgement that was delivered on 11. 11. 2019 and cannot be addressed a second time. The applicant is barred from agitating an application under the guise of a review yet he is very well aware that this court is already functus officio. I decline the applicant’s request to entertain his application as doing so would be tantamount to sitting on appeal on a matter that it has already determined. The only avenue available to the applicant is to proceed to the Court of Appeal.
5. In the result it is my finding that the applicant’s application filed on 9. 10. 2019 lacks merit. The same is dismissed.
Orders accordingly.
Dated and delivered at Machakos this 20thday of July, 2020.
D.K.Kemei
Judge