[2025] KEHC 2264 (KLR)
The High Court, per Ong'udi J, held that it lacked jurisdiction to review a sentence that had already been reviewed and determined by another High Court judge of concurrent jurisdiction. The court applied the doctrine of functus officio, finding that it could not revisit or alter the decision of Muhochi J, who had...
Source-derived case information.
- Citation
- [2025] KEHC 2264 (KLR)
- Parties
- Applicant: Benson Kiragu Wanjiru; Applicant: Susan Muthoni Waruguru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E083 of 2024
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Review of Sentence to Non Custodial
- Outcome
- Application struck out for lack of merit; file closed.
- Judges
- HI Ong'udi
- Legal Topics
- Sentence Review, Non Custodial Sentences, Functus Officio, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Kiragu Wanjiru
Applicant
Susan Muthoni Waruguru
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Review of Sentence to Non Custodial
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence already reviewed by a judge of concurrent jurisdiction.
- 2 Whether the applicants are entitled to a further review of their sentence to a non-custodial one.
Ratio Decidendi
The High Court, per Ong'udi J, held that it lacked jurisdiction to review a sentence that had already been reviewed and determined by another High Court judge of concurrent jurisdiction. The court applied the doctrine of functus officio, finding that it could not revisit or alter the decision of Muhochi J, who had already ordered the sentences to run concurrently. The proper forum for any further challenge to the sentence was the Court of Appeal. Consequently, the application for a further review to a non-custodial sentence was struck out for lack of merit.
Court Disposition
Application struck out for lack of merit; file closed.
Orders
- The application for review to a non-custodial sentence is struck out.
- No further orders issued; file closed.
Full Case Text
Judgment text and source record
26 paragraphs
Wanjiru & another v Republic (Criminal Miscellaneous Application E083 of 2024) [2025] KEHC 2264 (KLR) (19 February 2025) (Ruling)
Neutral citation: [2025] KEHC 2264 (KLR)
Republic of Kenya
In the High Court at Nakuru
Criminal Miscellaneous Application E083 of 2024
HI Ong'udi, J
February 19, 2025
Between
Benson Kiragu Wanjiru
1st Applicant
Susan Muthoni Waruguru
2nd Applicant
and
Republic
Respondent
Ruling
1. Benson Kiragu Wanjiru (1st applicant) and Susan Muthoni Waruguru (2nd applicant) are seeking release on non-custodial sentences.
2. Both applicants were charged and convicted after a full hearing in Molo Chief Magistrate’s court Criminal Case No. E1840 of 2022 on two (2) counts of:i.Assault in resisting arrest contrary to section 253 (a) of the penal code.ii.Assault causing actual bodily harm contrary to section 251 of the penal code.
3. Upon conviction they were each sentenced to serve four (4) years imprisonment on each count with an order that the sentences run consecutively. This was on 19th July, 2023.
4. On 11th October, 2023 they both filed a Misc. Criminal Application No. E133 of 2023, in which they sought to have the order for the sentences to run consecutively reviewed and an order for the sentences to run concurrently to be issued.
5. On 13/5/2024 the applicants appeared before Muhochi J for the hearing of their review application. The same was heard and the orders reviewed as sought. Their sentences are to run concurrently.
6. The applicants are now here for a further review of their sentence to a non-custodial one. It is clear that the sentence sought to be reviewed is no longer the one by the Magistrate’s Court but the one by Muhochi J of the High Court.
7. As clearly pointed out by M/s Okok, counsel for the respondent this court cannot review the sentence by Muhochi J since we are courts of equal status. This court is therefore functus officio and I therefore decline to issue any orders in respect of this application. If dissatisfied with the orders by Muhochi J they should move to the Court of Appeal.
8. The upshot is that the application lacks merit and is struck out. File closed.
9. Orders accordingly.
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 19TH DAY OF FEBRUARY, 2025 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE