[2024] KEHC 14638 (KLR)

Owino v Republic (Miscellaneous Criminal Application E068 of 2023) [2024] KEHC 14638 (KLR) (22 November 2024) (Ruling)

Neutral citation: [2024] KEHC 14638 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E068 of 2023

DK Kemei, J

November 22, 2024

Between

Samwel Dalon Owino

Applicant

and

Republic

Respondent

Ruling

1. The Applicant Samwel Dalon Owino 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 sentenced to serve 25 years imprisonment on 23/3/2017 vide Bondo CM’s SO Case No. 393/2009.

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 156/2011 which was dismissed; that he lodged an appeal before the Court of Appeal and which was dismissed as well on 2/9/ 2023.

3. The application was canvassed by way of written submissions. The applicant submitted that he should be placed on a least severe sentence namely, on probation as he has served a substantial part of the sentence and that he should be released back to the society. He now seeks for consideration to rejoin his family and community. That he is now rehabilitated fully and merits an order for 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 in 2023 which was dismissed on 2/9/2023. His conduct in coming back to this court yet it has 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. In the matter before me, the applicant on his own words admitted that his appeal in Siaya HCCRA 156/2011 was duly dismissed by this court and further that he later filed an appeal in the Court of Appeal which was as well dismissed on 2/9/2023. Putting this in mind, and having noted that a decision had already been rendered by this court, then the court is functus officio in this regard and that it cannot purport to sit on appeal regarding matters that it had already determined. 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 dated 17/5/2023 lacks merit. The same is dismissed.

DATED AND DELIVERED AT SIAYA HIGH COURT THIS 22NDDAY OF NOVEMBER, 2024. D. KEMEIJUDGEIn the presence of:Samwel Dalon Owino…………….ApplicantM/s Kerubo…………………………For RespondentOgendo…………………………….Court Assistant