[2023] KEHC 21668 (KLR)
The High Court, having already heard and determined the applicant's first appeal on the same conviction and sentence, is functus officio and cannot entertain a subsequent application for sentence review. Entertaining the application would amount to an abuse of the court process. The applicant's remedy, if any, lies...
Source-derived case information.
- Citation
- [2023] KEHC 21668 (KLR)
- Parties
- Applicant: Issac Mwangi Njoroge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E043 of 2022
- Procedural Posture
- Criminal Miscellaneous Application / Sentence Review Application After Conviction and Appeal
- Outcome
- Application struck out for want of jurisdiction.
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Incest Offence, Functus Officio, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Issac Mwangi Njoroge
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Sentence Review Application After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after having already determined the first appeal on the same matter.
- 2 Whether the application for sentence review is tenable in light of the doctrine of functus officio.
- 3 Whether the applicant should pursue any further remedies in the Court of Appeal.
Ratio Decidendi
The High Court, having already heard and determined the applicant's first appeal on the same conviction and sentence, is functus officio and cannot entertain a subsequent application for sentence review. Entertaining the application would amount to an abuse of the court process. The applicant's remedy, if any, lies with the Court of Appeal, where an appeal was previously filed and may still be pending unless withdrawn. Accordingly, the application is struck out for want of jurisdiction.
Court Disposition
Application struck out for want of jurisdiction.
Orders
- The application is struck out for want of jurisdiction.
- The Hon. Deputy Registrar to note the particulars of the applicant in the 'black book' and/or register and monitor any further application.
Full Case Text
Judgment text and source record
23 paragraphs
Njoroge v Republic (Criminal Miscellaneous Application E043 of 2022) [2023] KEHC 21668 (KLR) (23 August 2023) (Ruling)
Neutral citation: [2023] KEHC 21668 (KLR)
Republic of Kenya
In the High Court at Naivasha
Criminal Miscellaneous Application E043 of 2022
GL Nzioka, J
August 23, 2023
Between
Issac Mwangi Njoroge
Applicant
and
Republic
Respondent
Ruling
1. By an application filed on the 28th day of July 2022, the applicant is seeking for sentence review in criminal case No. 197 of 2011 at Naivasha before the Chief Magistrate’s Court where he was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve life imprisonment.
2. He further seeks that the court do take into account the provisions of section 333(2) of the Criminal Procedure Code and apply the same accordingly.
3. He relies on the supporting affidavit he has sworn filed on the even date and the submissions filed to canvass the application. The respondent did not file any response to the application.
4. Be that as it were, the court record reveals that after judgment was delivered by the trial court on the August 15, 2011, the appellant filed an appeal No. 203 of 2011 at the High Court at Nakuru. By a letter dated October 4, 2011, the Hon. Deputy Registrar at Nakuru High Court requested for the proceedings of the trial court. Subsequently the appeal was heard and dismissed in its entirety vide a judgment of the court delivered on July 19, 2013.
5. The applicant then filed an appeal at the Court of Appeal. The results thereof is unknown save for an indication that, he wrote to the Deputy Registrar of the Court of Appeal at Nakuru seeking for withdrawal of that appeal. The subject letter is dated May 13, 2020.
6. Pursuant to the aforesaid and in particular the fact that, this court heard and determined the first appeal relating to the subject matter herein, it is functus officio and this application is not tenable. It is actually an abuse of the process of court. The Hon. Deputy Registrar should note the particulars of the applicant in the “black book” and/or register and monitor any further application.
7. The applicant should pursue his appeal in the Court of Appeal if it has not been withdrawn. Consequently, the application herein is struck out for want of jurisdiction.
8. It is so ordered.
DATED, DELIVERED AND SIGNED THIS 23RD AUGUST 2023. GRACE L. NZIOKAJUDGEIn the presence of:The applicant in person virtuallyMr Atika for the respondentMs Ogutu: Court Assistant