[2020] KEHC 4428 (KLR)
The High Court held that it was functus officio after affirming the applicant's conviction and sentence, and that the filing of a notice of appeal to the Court of Appeal divested it of jurisdiction to entertain the resentencing application. Entertaining the application would amount to concurrent consideration of the...
Source-derived case information.
- Citation
- [2020] KEHC 4428 (KLR)
- Parties
- Applicant: Titus Musyoka Muinde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 57 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeal
- Outcome
- application dismissed
- Legal Topics
- Defilement, Sentencing Review, Functus Officio, Hierarchy of Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Musyoka Muinde
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeal
Legal Issues
- 1 Whether the High Court can entertain an application for resentencing after affirming conviction and sentence, when a notice of appeal to the Court of Appeal has been filed.
- 2 Whether the doctrine of functus officio bars the High Court from reviewing its own sentence after the matter has been escalated to the Court of Appeal.
Ratio Decidendi
The High Court held that it was functus officio after affirming the applicant's conviction and sentence, and that the filing of a notice of appeal to the Court of Appeal divested it of jurisdiction to entertain the resentencing application. Entertaining the application would amount to concurrent consideration of the matter and disregard for the hierarchy of courts. The applicant's recourse lies with the Court of Appeal, where his appeal is pending. Accordingly, the application for resentencing was dismissed for want of merit.
Court Disposition
application dismissed
Orders
- The applicant's application for resentencing filed on 5.6.2020 is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Coram: D. K. Kemei – J
MISCELLANEOUS CRIMINAL APPL. NO. 57 OF 2020
TITUS MUSYOKA MUINDE....................APPLICANT
VERSUS
REPUBLIC.............................................RESPONDENT
RULING ON RESENTENSING
1. The Applicant herein Titus Musyoka Muinde was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. After a full trial he was convicted and sentenced to serve life imprisonment.
2. The Applicant was aggrieved by the said conviction and sentence and he filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgment was delivered on 18. 9.2018 by this court in which it affirmed the conviction and the sentence of the trial court.
3. The Applicant thereafter filed a notice of appeal with intention to appeal against the decision of the High Court to the Court of Appeal. In addition, he has now filed the present application in which he seeks review of sentence pursuant to the decision in Evans Wanjala Wanyonyi (2019) eKLR. In S v. Ndlovu 2012 (1) ZLR 393 the Zambian High Court observed that sentencing must utilize an engendered approach and a constitutional and human rights perspective. From the import of the functus officio doctrine the applicant is not entitled to resentencing. Further, the matter is already in the Court of Appeal and handling the application on its merits would be tantamount to concurrent consideration of the matter and hence a disregard for the hierarchy of courts. Entertaining the application would be tantamount to this court sitting on appeal on a matter that has already been escalated to a higher court. The applicant having intimated his intention to appeal to the Court of Appeal should proceed to the said court where his appeal is pending consideration.
4. In the result the Applicant’s application filed on 5. 6.2020 is devoid of merit. The same is dismissed.
It is so ordered.
Dated and delivered at Machakos this 7th day of July, 2020.
D.K.Kemei
Judge