[2025] KEHC 452 (KLR)
The High Court held that it was functus officio, having already determined the applicant's appeal against conviction and sentence. The applicant's attempt to seek a review of sentence before the same court amounted to an abuse of court process, as the court could not sit on appeal or review its own decision after...
Source-derived case information.
- Citation
- [2025] KEHC 452 (KLR)
- Parties
- Applicant: Stephen Omondi Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E120 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- DK Kemei
- Legal Topics
- Review of Sentence, Functus Officio, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Omondi Otieno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court can review the applicant's sentence after having already determined his appeal.
- 2 Whether the period spent in custody prior to conviction should be considered in the applicant's sentence at this stage.
Ratio Decidendi
The High Court held that it was functus officio, having already determined the applicant's appeal against conviction and sentence. The applicant's attempt to seek a review of sentence before the same court amounted to an abuse of court process, as the court could not sit on appeal or review its own decision after the appeal had been dismissed. The proper forum for any further challenge was the Court of Appeal. Consequently, the application for review of sentence to account for time spent in custody was dismissed for lack of merit and want of jurisdiction.
Court Disposition
application dismissed
Orders
- The application dated 24/10/2024 is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
Otieno v Republic (Miscellaneous Criminal Application E120 of 2024) [2025] KEHC 452 (KLR) (17 January 2025) (Ruling)
Neutral citation: [2025] KEHC 452 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E120 of 2024
DK Kemei, J
January 17, 2025
Between
Stephen Omondi Otieno
Applicant
and
Republic
Respondent
Ruling
1. The Applicant herein Stephen Omondi Otieno has filed the present application dated 24/10/2024 seeking for review of sentence to capture the period spent in custody prior to conviction and sentence by the trial court. The Applicant’s case is that he spent in remand custody for three months. That he has undergone rehabilitation while in prison. That he had lodged an appeal to this court but which was dismissed.
2. I have considered the application. It is not in dispute that the Applicant had been convicted and sentenced to serve 15 years’ imprisonment for the offence of defilement contrary to Section 8(1) and 8(4) of the Sexual Offences Act vide Bondo PMCR No. 438 of 2015. As averred by the Applicant, which I do not doubt, he lodged an appeal to the High Court which was dismissed. The Applicant has not indicated whether he lodged an appeal to the Court of Appeal following the dismissal of his appeal by this court. As the Applicant’s appeal had been determined by this court, then this court is now functus officio and that the Applicant should proceed to the Court of Appeal for redress if aggrieved. The Applicant despite his appeal having been determined by this court, he now come back to attempt to have the second bite, at the cherry.I find the attempt by the Applicant to invite this court to entertain his application must be resisted since this court cannot sit on appeal in a matter that it had already determined. Hence, I find the application to be an abuse of the court process.
3. In the result, it is my finding that the Applicant’s application dated 24/10/2024 is devoid of any merit. The same is dismissed.
DATED AND DELIVERED AT SIAYA THIS 17THDAY OF JANUARY 2025. D. KEMEIJUDGEIn the presence of:Stephen Omondi Otieno……ApplicantM/s Kerubo………….for RespondentMboya………………..Court Assistant