[2023] KEHC 153 (KLR)
The High Court found that the applicant's request for review of sentence under section 333(2) of the Criminal Procedure Code had already been addressed in a prior appeal, where the period spent in custody was considered and factored into the sentence. As such, the court held it was functus officio and lacked...
Source-derived case information.
- Citation
- [2023] KEHC 153 (KLR)
- Parties
- Applicant: Justine Machuma Ong’era; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E067 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- Application struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lacking merit.
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Functus Officio, Sexual Offences, Defilement, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justine Machuma Ong’era
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 applicant's sentence under section 333(2) of the Criminal Procedure Code after the issue was previously determined.
- 2 Whether the application is an abuse of court process.
Ratio Decidendi
The High Court found that the applicant's request for review of sentence under section 333(2) of the Criminal Procedure Code had already been addressed in a prior appeal, where the period spent in custody was considered and factored into the sentence. As such, the court held it was functus officio and lacked jurisdiction to entertain the same application again. The application was therefore struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lacking merit.
Court Disposition
Application struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lacking merit.
Orders
- The application is struck out for want of jurisdiction and/or dismissed for being an abuse of court process and/or lack of merit.
Full Case Text
Judgment text and source record
21 paragraphs
Ong’era v Republic (Miscellaneous Criminal Application E067 of 2022) [2023] KEHC 153 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 153 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E067 of 2022
GL Nzioka, J
January 4, 2023
Between
Justine Machuma Ong’era
Applicant
and
Republic
Respondent
(Being an application for for review of the sentence meted in Criminal Case No 44 of 2017 at the Chief Magistrate’s Court at Naivasha.)
Ruling
1. By an undated chamber summons application filed herein the applicant is seeking for review of the sentence meted against him vide Criminal Case No 44 of 2017, at the Chief Magistrate’s Court at Naivasha. He prays that, the court be pleased to revise the sentence and take into account the provisions of section 333(2) of the Criminal Procedure Code. The application is supported by an affidavit sworn by the applicant
2. The application was served but no response was filed. However, I note from the materials placed before the court that, the applicant was arraigned before the Chief Magistrate’s court charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to section 11 of the said Act. He was subsequently convicted on the main count and sentenced to serve twenty (20) years imprisonment.
3. The applicant avers that, he filed appeal at Naivash High Court No 18 of 2019 that was heard and dismissed. However, the file availed of the High Court Criminal Appeal No E001 of 2020 indicates that, that the applicant withdrew the appeal on conviction, the appeal on sentence was heard and allowed to the extend that, the period of one (1) year two (2) months and twenty-two (22) days, the applicant was in custody was taken into account.
4. In that case, the application to review the sentence based on the provision of section 333 (2) of the Criminal Procedure Code has already been dealt with and therefore the court is functus officio. I accordingly strike out the current application for want of jurisdiction and/or dismiss it for being an abuse of court process and/or lack of merit.
5. It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF JANUARY, 2023. GRACE L NZIOKAJUDGEIn the presence of:Applicant in person virtuallyMr Ndiema for the RespondentMs Ogutu -Court Assistant