[2023] KEHC 146 (KLR)
The High Court found that it had already determined the applicant's appeal against conviction and sentence, and had previously dismissed a similar application for review. The doctrine of functus officio applies, meaning the court cannot re-engage with the merits of the case or review the sentence once a final...
Source-derived case information.
- Citation
- [2023] KEHC 146 (KLR)
- Parties
- Applicant: TMM; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E052 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed/struck out for lack of merit; court functus officio
- Judges
- GL Nzioka
- Legal Topics
- Review of Sentence, Functus Officio, Sexual Offences, Incest, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
TMM
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after having already determined an appeal on the same matter.
- 2 Whether the application for review amounts to an abuse of the court process in light of the doctrine of functus officio.
- 3 Whether the applicant is entitled to a revision of sentence under section 333(2) of the Criminal Procedure Code and article 50(2) of the Constitution.
Ratio Decidendi
The High Court found that it had already determined the applicant's appeal against conviction and sentence, and had previously dismissed a similar application for review. The doctrine of functus officio applies, meaning the court cannot re-engage with the merits of the case or review the sentence once a final decision has been rendered. Furthermore, the applicant has already lodged an appeal to the Court of Appeal, and both the trial and High Court files have been forwarded to that court. Therefore, the application for review of sentence is an abuse of the court process and must be struck out or dismissed for lack of merit.
Court Disposition
application dismissed/struck out for lack of merit; court functus officio
Orders
- The application for review of sentence is struck out and/or dismissed for lack of merit.
Full Case Text
Judgment text and source record
22 paragraphs
TMM v Republic (Miscellaneous Criminal Application E052 of 2022) [2023] KEHC 146 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 146 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E052 of 2022
GL Nzioka, J
January 4, 2023
Between
TMM
Applicant
and
Republic
Respondent
Ruling
1. By a chamber summons application filed in August 15, 2022 the applicant is seeking for review of the sentence meted against him vide Criminal Case S/O No. 47 of 2016, at the Chief Magistrate’s Court at Naivasha. He prays that, the court be pleased to revise the sentence and take into account the provisions of;article 50(2), (p),(q) of the Constitution and section 333(2) of the Criminal Procedure Code. The application is supported by an affidavit sworn by the applicant
2. The respondent has not filed a response to the application. However, I note from the materials placed before the court that, the applicant was arraigned before the Chief Magistrate’s Court charged with the offence of incest contrary to section 20 of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to section 11 (1) of the said Act. He was subsequently convicted on the main count and sentenced to life imprisonment.
3. However, he appealed against the decision vide High Court Criminal Case No. 15 of 2017, wherein the appeal was dismissed on November 6, 2018, in its entirety. The applicant subsequently filed a Miscellaneous Criminal Application No. 94 of 2019, seeking for similar orders as herein. That application was dismissed and he filed the current application.
4. As such, the application herein for review sentence amounts to an abuse of the court process, and this court having heard and determined the appeal, it is functus officio. In that regard, the Court of Appeal in the case of; Telkom Kenya Limited v John Ochanda [2014] eKLR, stated that:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar; is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.”
5. Furthermore, the applicant has lodged an appeal to the Court of Appeal and both the trial court and High Court files have been forwarded to that court.
6. The upshot thereof is, I find and hold that, this court is functus officio and strike out the current application and/or dismiss it for lack of merit.
7. It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF JANUARY 2023GRACE L NZIOKAJUDGEIn the presence of:Applicant in person virtuallyMr. Ndiema for the RespondentMs Ogutu-Court Assistant