[2023] KEHC 24104 (KLR)
The High Court held that it had no jurisdiction to enforce compliance with probationary terms or orders after the probation period had lapsed. Once the convict completed the probation on May 27, 2022, the court became functus officio regarding the orders made on May 27, 2019. Any alleged breach or criminal conduct...
Source-derived case information.
- Citation
- [2023] KEHC 24104 (KLR)
- Parties
- Applicant: Isaiah Opondo Okuwa; Applicant: Samwel Afwande Okuwa; Respondent: Inspector General Of Police Service; Respondent: Director Of Public Prosecutions; Respondent: The Hon Attorney General
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E059 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Arrest of Convict for Alleged Breach of Probation Terms
- Outcome
- application struck out for want of jurisdiction; file closed
- Judges
- RE Aburili
- Legal Topics
- Probation Breach, Functus Officio, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Opondo Okuwa
Applicant
Samwel Afwande Okuwa
Applicant
Inspector General Of Police Service
Respondent
Director Of Public Prosecutions
Respondent
The Hon Attorney General
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Arrest of Convict for Alleged Breach of Probation Terms
Legal Issues
- 1 Whether the High Court has jurisdiction to enforce probationary orders after the expiry of the probation period.
- 2 Whether the alleged breach of probation terms after completion of probation constitutes a new offence to be dealt with separately.
Ratio Decidendi
The High Court held that it had no jurisdiction to enforce compliance with probationary terms or orders after the probation period had lapsed. Once the convict completed the probation on May 27, 2022, the court became functus officio regarding the orders made on May 27, 2019. Any alleged breach or criminal conduct occurring after the expiry of probation constitutes a new and separate offence, which must be investigated and prosecuted by the police and not enforced through the original sentencing court. Therefore, the application seeking the arrest of the convict for breach of probationary terms was not merited and was struck out for want of jurisdiction.
Court Disposition
application struck out for want of jurisdiction; file closed
Orders
- The application dated October 18, 2023 is struck out.
- The file is closed.
Full Case Text
Judgment text and source record
32 paragraphs
Okuwa & another v Inspector General of Police Service & 2 others (Miscellaneous Criminal Application E059 of 2023) [2023] KEHC 24104 (KLR) (25 October 2023) (Ruling)
Neutral citation: [2023] KEHC 24104 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E059 of 2023
RE Aburili, J
October 25, 2023
Between
Isaiah Opondo Okuwa
1st Applicant
Samwel Afwande Okuwa
2nd Applicant
and
Inspector General Of Police Service
1st Respondent
Director Of Public Prosecutions
2nd Respondent
The Hon Attorney General
3rd Respondent
Ruling
1. Before me is an application dated October 18, 2023 filed under Certificate of Urgency by Isaiah Opondo Okuwa and Samuel Afwande Okuwa.
2. The two applicants are the family members of the deceased Bartholombo Okuwa Wanyado.
3. The Respondent is one Clement Festo Ochieng who was convicted of the Murder of Bartholombo Okuwa Wanyado and sentenced to death vide Kisumu HCCR No. 77 of 2003. He served 16 years in prison before he petitioned for resentencing vide HC Petition No. 43 of 2018.
4. On May 27, 2019, Hon. F. A. Ochieng J resentenced the Respondent herein to Probation for 3 years and further directed/ordered the Convict to keep away from the place where the crime was committed.
5. What is before me is an application seeking for arrest of the Convict on account that he has breached the probationary terms by threatening to kill witnesses who testified against him and that he has refused to move away from the area where the crime of murder was committed.
6. I have considered the application and the supporting affidavit. The issue for determination is whether the application is merited.
7. In my humble view, the Respondent having served Probation and completed the term on May 27, 2022, this court becomes functus officio as far as alleged breach of Probationary terms or orders made on May 27, 2019 are concerned.
8. This court had supervision over the convict only before he completed probation. Any act or omission done after May 27, 2022 in breach of the Probationary terms which include the threats to witnesses is a separate and new offence that can only be dealt with by the police investigating the threats as alleged and preferring appropriate charges against the offender.
9. In addition, the order to stay away from the area where the crime of murder was committed was part of the resentence order placing the convict on probation and this court cannot enforce compliance after lapse of the probationary period.
10. In the circumstances, I find and hold that this court has no jurisdiction to grant the orders sought in the application dated October 18, 2023 which is hereby struck out and this file is closed.
11. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 25TH DAY OF OCTOBER, 2023. R. E. ABURILIJUDGE