[2024] KEHC 15671 (KLR)
The High Court found that it had already determined the applicant's appeal against conviction and sentence, and that the applicant had further appealed to the Court of Appeal, which dismissed his appeal. The court held that it is functus officio and therefore lacks jurisdiction to entertain the application for...
Source-derived case information.
- Citation
- [2024] KEHC 15671 (KLR)
- Parties
- Applicant: David Owino Onginjo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E075 of 2023
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- DK Kemei
- Legal Topics
- Defilement Offence, Sentence Revision, Functus Officio, Community Service Orders, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Owino Onginjo
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to revise the applicant's sentence after having already determined his appeal.
- 2 Whether the principle of functus officio bars the court from entertaining the application for sentence revision.
- 3 Whether the applicant is entitled to an order of probation or sentence reduction based on alleged rehabilitation.
Ratio Decidendi
The High Court found that it had already determined the applicant's appeal against conviction and sentence, and that the applicant had further appealed to the Court of Appeal, which dismissed his appeal. The court held that it is functus officio and therefore lacks jurisdiction to entertain the application for revision of sentence. The applicant's attempt to seek further relief from the same court after the appellate process had been exhausted was improper. The court emphasized the importance of adhering to the established appeal system and rejected the application as lacking merit.
Court Disposition
application dismissed
Orders
- The applicant's application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
Onginjo v Republic (Criminal Miscellaneous Application E075 of 2023) [2024] KEHC 15671 (KLR) (9 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15671 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Miscellaneous Application E075 of 2023
DK Kemei, J
December 9, 2024
Between
David Owino Onginjo
Applicant
and
Republic
Respondent
Ruling
1. The Applicant David Owino Onginjo is a convict for the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act. He was convicted and sentenced to serve 30 years imprisonment vide Bondo CM’s Criminal Case No. 174/2014.
2. The application is supported by grounds on the face thereof and by a supporting affidavit of the Applicant. The grounds are inter alia; that upon conviction and sentence by the lower court, he moved to the High Court vide Siaya HCCRA 10/2016 which was dismissed; that he lodged an appeal before the Court of Appeal and which was dismissed as well.
3. It is worth noting that the Applicant filed his submissions on 15/10/2024 in which he submitted that he should be placed on a least severe punishment; that he is transformed, rehabilitated,; socially transformed through several trainings including spiritual as he is remorseful; and that the sentence to run from the date of arrest; he now seeks for consideration to rejoin his family and community; that he is now rehabilitated, fully and merits an order of probation.
4. It was submitted by the Respondent that the application is incompetent and should be struck out for being improperly before this court.
5. I have carefully considered the Applicant’s application and the written submissions by the parties.
6. The Applicant has not disputed that he exercised his right of appeal wherein he should have raised all issues to do with sentence. He submits that he has been reformed hence he should be set free to serve probation under the Community Service Orders Act.
7. The Respondent’s counsel opposed the application on the grounds that the applicant had already lodged an appeal at the Court of Appeal rendering this court functus officio.
8. I have considered the applicant’s application and the written submissions. Indeed, the applicant’s application seeks for revision of sentence. As this court had dealt with the earlier appeal case, it cannot again sit on its own appeal and purport to determine the latest application owing to the principle of functus officio. Again, the Applicant has confirmed that he did file an appeal to the Court of Appeal sometimes which was dismissed. His conduct in coming back to this court yet it had already determined his appeal must be frowned upon.
9. The term “functus” is defined at page 840 of Jowitts Dictionary of English Law 2010 Edition as: -“functus officio (having discharged its duty), an expression applicable to a Judge, magistrate or arbitrator who has given a decision made an order of award so that his authority is exhausted.”
10. The courts and the appeal system must be adhered to by the applicant. He should not play lottery with the courts.
11. In light of the foregoing, it is my finding that the applicant’s application lacks merit. The same is dismissed.
DATED AND DELIVERED AT SIAYA HIGH COURT THIS 9THDAY OF DECEMBER, 2024D. KEMEIJUDGEIn the presence of:David Owino Onginjo…………….ApplicantM/s Mumu …………..…for RespondentOgendo……………………Court Assistant