[2018] KEHC 415 (KLR)
The court found that the petitioner had already exercised his right of appeal, and the issues raised in the constitutional petition had been fully addressed and determined in the prior criminal appeal. The High Court, having rendered judgment on the appeal, was functus officio and lacked jurisdiction to entertain a...
Source-derived case information.
- Citation
- [2018] KEHC 415 (KLR)
- Parties
- Petitioner: Richard Simiyu Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Petition 8 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Petition Challenging Criminal Conviction After Appeal Dismissed
- Outcome
- petition dismissed
- Legal Topics
- Right to Fair Trial, Appeals Process, Functus Officio, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Simiyu Makokha
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition Challenging Criminal Conviction After Appeal Dismissed
Legal Issues
- 1 Whether the petitioner's constitutional rights under Articles 25, 27, and 50 of the Constitution were violated during his criminal trial and appeal.
- 2 Whether the High Court has jurisdiction to entertain a petition raising issues already determined in a concluded criminal appeal.
- 3 Whether the petition constitutes an abuse of court process by seeking to re-litigate matters already adjudicated.
Ratio Decidendi
The court found that the petitioner had already exercised his right of appeal, and the issues raised in the constitutional petition had been fully addressed and determined in the prior criminal appeal. The High Court, having rendered judgment on the appeal, was functus officio and lacked jurisdiction to entertain a petition that effectively sought a second appeal on the same matters. The court emphasized that any further challenge to the conviction or sentence should be pursued before the Court of Appeal, as provided by Article 164(3)(a) of the Constitution. The petition was therefore held to be an abuse of court process and was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed as an abuse of court process.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
PETITION NO. 8 OF 2017
RICHARD SIMIYU MAKOKHA....................PETITIONER
VERSUS
REPUBLIC.......................................................RESPONDENT
RULING
1. Richard Simiyu Makokha, the Petitioner herein, filed the present petition pursuant to Article 22and 23 of the Constitution of Kenya 2010. The Petitioner alleged that his fundamental rights and freedoms guaranteed under Articles 25, 27and 50 of the Constitutionwere violated during the trial of his case. Further that section 214 of the Criminal Procedure Codeand section 36 of the Sexual Offences Act No. 3 of 2006were not complied with.
2. In his written submissions, the Petitioner argued that he was not afforded a fair trial and was convicted on an incurably defective charge sheet. He further stated that the sentence of life imprisonment imposed against him threatened his right to life which is guaranteed under theConstitution.
3. The state opposed the constitutional application through learned state counsel Mrs. Njeru who urged the court to dismiss the petition stating that the Petitioner had filed an appeal which was heard and dismissed. That he could therefore only seek recourse at the Court of Appeal.
4. Indeed the record demonstrates that the Petitioner filed a Criminal Appeal No. 112 of 2012 in the High Court of Bungoma vide a Memorandum of Appeal dated 13th June, 2012. In his grounds of appeal, he argued that the prosecution case was not proved to the required standard and did not therefore justify the conviction against him. Further that the sentenced meted was harsh and excessive.
5. The Appeal was heard before Lady Justice Hellen Omondi who dismissed the appeal vide a judgment dated 11th July, 2017. The learned Judge found that the prosecution evidence was duly considered and proved the offence against the Appellant and was safe to sustain the conviction. The learned Judge also confirmed the sentence stating that it was legal as provided by law. The judgment therefore addressed the concerns raised by the Petitioner in the present petition.
6. In light of the fact that the Petitioner herein had filed an appeal which was consequently heard and determined on merit, the present petition filed is tantamount to a second appeal. It is disguised as a petition but it in effect raises issues that had been addressed in the Bungoma High Court Criminal Appeal No. 112 of 2012. The Petitioner therefore seeks to have a second bite at the cherry and have this court sit on an appeal against its own decision.
7. Whereas Article 165(3)(b) of the Constitutiongrants the High Court jurisdiction to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened, there is no doubt that the Petitioner filed the present petition because he was dissatisfied with the decision of Lady Justice Hellen Omondi. In any event, rights and freedoms guaranteed in the Bill of Rights can be limited within the confines stipulated under Article 24 of the Constitution.
8. The alleged contravention of constitutional rights complained of by the Petitioner focuses on matters which had been re-evaluated and re-assessed in his appeal which was consequently dismissed on merit. The issues can therefore be appropriately catered for and addressed in a second appeal to the Court of Appeal. It is trite law that an appeal against a judgment of the High Court can only be determined by the Court of Appeal by dint of Article 164(3)(a) of the Constitutionwhich clothes it with jurisdiction to hear appeals from the High Court.
9. In the instant case, since the Petitioner herein had filed an appeal against the decision of the trial court, and which was heard and determined by the High Court in Bungoma which was vested with jurisdiction to hear and determine the appeal which arose from a subordinate court, I find that this court is therefore functus officio in this matter.
In the premise therefore, I find that the present petition is misguided and an abuse of court process. Accordingly, it fails and is consequently dismissed. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 28TH DAY OF NOVEMBER 2018.
………………………..
L. A. ACHODE
HIGH COURT JUDGE
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUNGOMA THIS 14TH DAY OF DECEMBER 2018.
…………………………..
H. K. CHEMITEI
HIGH COURT JUDGE