[2023] KEHC 150 (KLR)
The High Court lacks jurisdiction to entertain the applicant's request for resentencing because it is functus officio, having already dismissed the applicant's appeal in its entirety on November 17, 2016. Furthermore, the relevant trial and appeal files are unavailable as they have been forwarded to the Court of...
Source-derived case information.
- Citation
- [2023] KEHC 150 (KLR)
- Parties
- Applicant: Robert Nakitare Sitati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E080 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing and Consideration of Time Served
- Outcome
- application dismissed and/or struck out for want of jurisdiction
- Judges
- GL Nzioka
- Legal Topics
- Resentencing, Functus Officio, Jurisdiction of High Court, Time Spent in Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Nakitare Sitati
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing and Consideration of Time Served
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain the applicant's request for resentencing after dismissing his appeal.
- 2 Whether the period spent in custody should be considered in sentencing under section 333(2) of the Criminal Procedure Code.
- 3 Whether parallel proceedings can be maintained in the High Court and Court of Appeal over the same subject matter.
Ratio Decidendi
The High Court lacks jurisdiction to entertain the applicant's request for resentencing because it is functus officio, having already dismissed the applicant's appeal in its entirety on November 17, 2016. Furthermore, the relevant trial and appeal files are unavailable as they have been forwarded to the Court of Appeal, where the applicant has already lodged an appeal. The applicant cannot maintain parallel proceedings in both the High Court and the Court of Appeal over the same subject matter. Consequently, the application is dismissed and/or struck out for want of jurisdiction.
Court Disposition
application dismissed and/or struck out for want of jurisdiction
Orders
- The application is dismissed and/or struck out due to want of jurisdiction.
Full Case Text
Judgment text and source record
17 paragraphs
Sitati v Republic (Miscellaneous Criminal Application E080 of 2022) [2023] KEHC 150 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 150 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E080 of 2022
GL Nzioka, J
January 4, 2023
Between
Robert Nakitare Sitati
Applicant
and
Republic
Respondent
Ruling
1. I note that, the applicant herein seeks that, the court do award him a lenient definite sentence as provided for under section 50(2)(p)(q) of the Constitution and invoke the provisions of section 333(2) of the Criminal Procedure Codeto factor in the period he was in custody while on trial.
2. However, when I called for the trial court file, I learnt that, the subject file being Naivasha Chief Magistrate’s Criminal file case no 2877 of 2013 alongside the Naivasha High Court Criminal Appeal case no 6 of 2015 files were forwarded to the Court of Appeal, where the applicant has lodged an appeal. Therefore the only files thereof available are skeleton files. In the given circumstances, the court cannot entertain the application herein for the following reasonsa.The High court having dismissed the appeal in its entirety on November 17, 2016 it is functus officio.b.There is no record to enable the court re-hear the matter if it were possiblec.The applicant has already moved to the court of appeal and cannot run two parallel proceedings over the same subject matter. As such the application is dismissed and/or struck out due to want of jurisdiction.
DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF JANUARY 2023. GRACE L NZIOKAJUDGEIn the presence of;Applicant present virtuallyMr Ndiema for the RespondentMs Ogutu -court assistant