[2021] KEHC 9717 (KLR)
The court held that the applicant, having been sentenced to life imprisonment and not to the mandatory death sentence, does not fall within the ambit of the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence unconstitutional. Furthermore, the High Court is functus officio, having...
Source-derived case information.
- Citation
- [2021] KEHC 9717 (KLR)
- Parties
- Applicant: Stephen Muteti Mbuli; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 115 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Defilement, Sentencing Principles, Resentencing Applications, Functus Officio, Constitutional Rights, Sexual Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Muteti Mbuli
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR.
- 2 Whether the High Court is functus officio and thus lacks jurisdiction to entertain the resentencing application.
- 3 Whether Article 50(2)(p) of the Constitution entitles the applicant to the benefit of the least severe prescribed punishment.
Ratio Decidendi
The court held that the applicant, having been sentenced to life imprisonment and not to the mandatory death sentence, does not fall within the ambit of the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence unconstitutional. Furthermore, the High Court is functus officio, having already determined the applicant's appeal on conviction and sentence, and therefore lacks jurisdiction to entertain the present application for resentencing. The applicant's recourse lies with the Court of Appeal, as he retains the right to appeal to that court. Consequently, the application for resentencing lacks merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing filed on 31.7.2019 is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Coram: D. K. Kemei – J
MISCELLANEOUS CRIMINAL APPL. NO. 115 OF 2019
STEPHEN MUTETI MBULI................APPLICANT
VERSUS
REPUBLIC ....................................RESPONDENT
RULING ON RESENTENCING
1. Stephen Muteti Mbuli, the Applicant herein was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. The Applicant pleaded not guilty and the case proceeded to full hearing. He was convicted and sentenced to serve life imprisonment.
3. The Applicant was aggrieved by the conviction and sentence and filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard and that the appeal was dismissed with the result that the conviction and sentence was affirmed. The applicant did not appeal against the decision of this court to the Court of appeal but has opted to file the present application in which he seeks a resentensing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLRwhich declared the mandatory death sentence unconstitutional.
4. Article 50(2)(p) of the constitution provides that an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. From the import of Article 50(2) (p) of the constitution, the applicant is not entitled to resentencing.
5. The cited case has necessitated resentencing of all persons previously sentenced to the mandatory death sentence. The applicant was not sentenced to death but to life imprisonment.
6. Further as pointed out by the state, this is an inappropriate application as the court is functus officio. Such an application can only be entertained by a higher Court – the Court of Appeal. The judgement of this court was delivered on the 28. 9.2012 and it seems the applicant has not lodged an appeal to the Court of Appeal. The applicant is advised to present his appeal to the said court since this court is already functus officio having heard the applicant’s appeal and rendered a judgement. The applicant should now proceed to the higher court for redress if need be. In the case of Raila Odinga & 2 Others Vs. I.E.B.C. & 3 Others (2013) eKLRthe Supreme Court held that :
“A court is functus when it has performed all its duties in a particular case, The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision: any challenge to its ruling or adjudication must be taken to a higher court if that right is available.’’
It is noted that the applicant still has a right of appeal to the Court of Appeal and is yet to exercise the same. He should now seize the opportunity by approaching the said higher court.
7. In the result, it is my finding that the Applicant’s application filed on 31. 7.2019 lacks merit. The same is dismissed.
It is so ordered.
Dated and delivered at Machakos this 19thday of January, 2021.
D. K. Kemei
Judge