[2024] KEHC 15824 (KLR)
The High Court held that it has no jurisdiction to review a sentence that has already been confirmed by both the High Court and the Court of Appeal. The doctrine of functus officio applies, meaning the court has discharged its function and cannot reopen the matter. The applicant should have raised all issues...
Source-derived case information.
- Citation
- [2024] KEHC 15824 (KLR)
- Parties
- Applicant: Said Hassan Nuno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E014 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed for want of jurisdiction; court functus officio
- Judges
- JN Onyiego
- Legal Topics
- Robbery With Violence, Sentencing Review, Death Penalty, Functus Officio, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Hassan Nuno
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 a sentence already confirmed by the High Court and Court of Appeal.
- 2 Whether the doctrine of functus officio bars the court from entertaining the application for sentence review.
Ratio Decidendi
The High Court held that it has no jurisdiction to review a sentence that has already been confirmed by both the High Court and the Court of Appeal. The doctrine of functus officio applies, meaning the court has discharged its function and cannot reopen the matter. The applicant should have raised all issues regarding the sentence during the appellate process. As such, the application for review of sentence is dismissed for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction; court functus officio
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
Nuno v Republic (Miscellaneous Criminal Application E014 of 2024) [2024] KEHC 15824 (KLR) (16 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15824 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E014 of 2024
JN Onyiego, J
December 16, 2024
Between
Said Hassan Nuno
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with the offence of robbery with violence c/s 296(2) of the penal code. He was tried and convicted and sentenced to death by the trial court on 21. 09. 2005. Dissatisfied with the conviction and sentence, he appealed to the high court which upheld the sentence. Undeterred, he moved to the court of appeal which equally upheld the sentence on 19-11-2010.
2. He has now moved to this court for review of sentence. He argues that death penalty is inhuman. That his life imprisonment should be substituted with 30 years imprisonment pursuant to the court of appeal holding in Criminal Appeal No. 22 of 2018 Evans Nyamari Ayieko vs Republic where the court held that life imprisonment should be interpreted to mean 30 years.
3. Mr. Kihara prosecution counsel opposed the application urging that the court is functus officio.
4. I have considered the application herein and the response thereof. The Appellant is seeking this court to review the sentence imposed by the trial court and subsequently confirmed by the high court and court of appeal. It is trite law that this court cannot review a sentence that has been confirmed by a court of concurrent jurisdiction and later by a senior court. See Gathige v Republic (Miscellaneous Criminal Application E008 of 2022) [2022] KEHC 14733 (KLR) (31 October 2022) (Ruling)Neutral citation: [2022] KEHC 14733 (KLR)“I have considered the fact that, upon conviction the applicant appealed to the High Court vide HCCRA No 9 of 2017, and upon considering the appeal the court dismissed it in its entirety. Of great importance, the appellate court observed that, the sentence meted out by the trial court was too lenient.The decision of the High Court on appeal renders this court functus officio. The applicant should have canvassed the issues herein in the aforesaid appeal. He cannot be allowed to litigate in piece meals”.
5. In the circumstances of this application, I am in agreement with the state’s submission that this court has no jurisdiction to re-open the case herein. It is simply functus officio. To that extent, the application is dismissed.
DATED, SIGNED AND DELIVERED THIS 16TH DAY OF DECEMBER THIS 2024J. N. ONYIEGOJUDGE