Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

Thomas Mutune v Republic [2021] KEHC 2878 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The application for further reduction of sentence based on time spent in custody was dismissed because the High Court had already considered and factored in the period spent in custody during the applicant's first appeal, as expressly stated in the judgment. The Court of Appeal also addressed and dismissed the same ground, confirming that the issue had no basis. Consequently, the High Court is functus officio and lacks jurisdiction to entertain the same application again. The attempt to relitigate the issue constitutes an abuse of court process. Additionally, the Muruatetu decision on re-sentencing is inapplicable as it pertains only to murder cases, not narcotics offences.

Court disposition

application dismissed

Orders

  • The application is dismissed for lack of merit.
  • This file is marked as closed.

02

Material facts

Parties

Thomas Mutune

Applicant

Republic

Respondent Counsel: Ms Kibathi

03

Procedural history

  1. Posture

    Miscellaneous Application / Ruling on Application for Review of Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the period he spent in custody prior to sentencing should be considered for further reduction of his sentence pursuant to section 333(2) of the Criminal Procedure Code.
Respondent
The respondent, through Ms Kibathi, opposed the application, arguing that the period spent in custody had already been considered by the High Court during the first appeal and that the Court of Appeal had dismissed the ground based on section 333(2), rendering the matter res judicata and the court functus officio.

05

Court’s reasoning

  1. 01

    Section 333(2), Criminal Procedure Code (Cap 75)

    The period spent in custody by a convicted person should be taken into account during sentencing as per section 333(2) of the Criminal Procedure Code.

  2. 02

    Doctrine of functus officio; as referenced in the ruling

    Once an appellate court has determined a matter, the lower court becomes functus officio and lacks jurisdiction to revisit the same issue.

  3. 03

    Supreme Court decision in Muruatetu

    Re-sentencing under the Muruatetu decision applies only to murder cases.

06

Ratio, limits and disposition

Ratio decidendi

The application for further reduction of sentence based on time spent in custody was dismissed because the High Court had already considered and factored in the period spent in custody during the applicant's first appeal, as expressly stated in the judgment. The Court of Appeal also addressed and dismissed the same ground, confirming that the issue had no basis. Consequently, the High Court is functus officio and lacks jurisdiction to entertain the same application again. The attempt to relitigate the issue constitutes an abuse of court process. Additionally, the Muruatetu decision on re-sentencing is inapplicable as it pertains only to murder cases, not narcotics offences.

Obiter and limits

  • Re-sentencing under the Muruatetu decision is limited to murder cases only.
  • The matter having been dealt with by the Court of Appeal renders this court functus officio.

Court disposition

application dismissed

  • The application is dismissed for lack of merit.
  • This file is marked as closed.

Source and reliance status

High Court

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Judgment text

The complete available source text.

Source document

High Court

Judgment

[2021] KEHC 2878 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS CRIMINAL DIVISION

MISC CR APPL NO. 242 OF 2019

THOMAS MUTUNE.............................APPLICANT

VERSUS

REPUBLIC.......................................RESPONDENT

RULING

1. By an application dated 24th April 2019, the applicant seeks that, the period he spent in custody be considered pursuant to section 333(2) of the Criminal Procedure Code.

2. I have considered the application in the light of the historical background of the facts herein. The facts reveal that, the applicant was convicted over the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotics Drugs andPsychotropic Substances Control Act No. 4 of 1994, and sentenced by Hon. Oginjo Chief Magistrate (as she then was) to serve thirty (30) years imprisonment.

3. He appealed against both conviction and sentence. The appeal was heard vide criminal appeal number 168 of 2016. The appeal was heard by Hon Justice Kimaru who rendered a decision therein on 13th March 2019, and dismissed the appeal on conviction but allowed the same on sentence. The sentence was thus reduced from thirty (30) years to fifteen (15) years.

4. Being dissatisfied with the decision of the High court, the appellant moved to the Court of Appeal vide criminal application number 126 of 2019. The Appeal was heard and dismissed in its entirety.

5. He now seeks for review of sentence as aforesaid. Having considered the application, I find that it has no merit. First and foremost, Hon. Justice Kimaru stated as follows in the judgment rendered:

“For the avoidance of doubt, the period that the appellant was in custody during trial has been taken into account. it is so ordered”

6. Furthermore, the Court of Appeal stated in its judgment as follows:

“In the record before us, the appellant was granted bail by the trial court and he did not escape from custody after he was convicted and sentenced”

The court then dismissed the ground of Appeal based on section333(2) of Criminal Procedure Code as having no basis at all.

7. Therefore, to attempt to approach the court again on the same ground is an abuse of the court process. On that ground alone, the application is dismissed for lacking merit.

8. Moreover, the matter having been dealt with by the Court of Appeal is functus officio and lacks jurisdiction.

9. The upshot is that; the application is dismissed. Further pursuant to the decision in Muruatetu, re-sentencing is on murder cases only. I therefore order that this file be marked as closed.

It is so ordered.

DATED, DELIVERED VIRTUALLY AND SIGNED THIS 20TH DAY OF SEPTEMBER, 2021

GRACE L. NZIOKA

JUDGE

In the presence of:

Ms Kibathi for the Respondent

Applicant present in person

Edwin Ombuna – Court Assistant

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Muruatetu (Supreme Court of Kenya)

Case cited

Criminal Procedure Code (Cap 75) section 333(2)

Legislation

Legislation referenced in the available case record.

Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 section 4(a)

Legislation

Legislation referenced in the available case record.

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