[2023] KEHC 152 (KLR)
The High Court held that it lacked jurisdiction to review the applicant's sentence because it had already heard and determined the applicant's appeal against conviction and sentence, rendering it functus officio. Any further review or revision of the sentence would amount to an abuse of court process. The court...
Source-derived case information.
- Citation
- [2023] KEHC 152 (KLR)
- Parties
- Applicant: Edwin Nyambaso Onsongo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E199 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application struck out and/or dismissed for want of jurisdiction and lack of merit
- Judges
- GL Nzioka
- Legal Topics
- Review of Sentence, Functus Officio, Defilement Offence, Criminal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Nyambaso Onsongo
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 after an appeal has been heard and determined.
- 2 Whether section 333(2) of the Criminal Procedure Code applies in the circumstances of this case.
Ratio Decidendi
The High Court held that it lacked jurisdiction to review the applicant's sentence because it had already heard and determined the applicant's appeal against conviction and sentence, rendering it functus officio. Any further review or revision of the sentence would amount to an abuse of court process. The court emphasized that once an appellate court has rendered its decision, it cannot revisit the matter except as provided by law, and any issues regarding the application of section 333(2) of the Criminal Procedure Code should have been raised during the appeal or before the appropriate appellate forum. The application was therefore struck out for want of jurisdiction and/or dismissed for...
Court Disposition
application struck out and/or dismissed for want of jurisdiction and lack of merit
Orders
- The application for review of sentence 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
22 paragraphs
Onsongo v Republic (Miscellaneous Criminal Application E199 of 2021) [2023] KEHC 152 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 152 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E199 of 2021
GL Nzioka, J
January 4, 2023
Between
Edwin Nyambaso Onsongo
Applicant
and
Republic
Respondent
(the applicant is seeking for review of the sentence meted against him vide Criminal Case No. 3767 of 2011, at the Chief Magistrate’s Court at Naivasha.)
Ruling
1. By a chamber summons application filed herein on December 16, 2021, the applicant is seeking for review of the sentence meted against him vide Criminal Case No 3767 of 2011, 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; article 50(2)(p)(q) and section 333(2) of the Criminal Procedure Code. The application is supported by an affidavit sworn by the applicant.
2. The respondent did not file any response to the application. 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 (3) of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to; section 11(1) of the said Act. He was subsequently convicted on the main count and sentenced to serve twenty (20) years imprisonment.
3. The applicant subsequently filed appeal at Naivasha High Court No 39 of 2015, that was heard and dismissed in its entirety. Be that as it may, there is an indication that, the applicant has filed an appeal at the Court of Appeal, as both the trial and High Court files have been forwarded to that court.
4. In that case, the application herein to review the sentence based on the provision of section 333 (2) of the Criminal Procedure Code is not tenable as this court became functus officio upon hearing and determining the appeal.
5. 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.
6. It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF JANUARY 2023GRACE L NZIOKAJUDGEIn the presence of:Applicant in person virtuallyMr. Ndiema for the RespondentMs Ogutu-Court Assistant