1.The Applicant herein Joseph Mwangi was charged in the Kajiado Principal’s Magistrate Criminal Case No. 653 of 2012 with the offence of Defilement contrary to Section 8(1) as read with Section (3) of the Sexual offences Act No. 3 of 2006 and convicted to serve a period of 20 years imprisonment on 22/02/2013.
2.Aggrieved by the conviction and sentence the Applicant filed an Appeal in this Court being Machakos Criminal Appeal No. 70 of 2013 and the Appeal was dismissed and the conviction and sentence upheld.
Chamber Summons Dated 3rd December, 2021
3.Aggrieved by the sentence, the Applicant on 3rd December, 2021 filed in Court a Petition under certificate of urgency seeking the following prayers:-a.That this Court issue orders for special hearing of this Application for resentencing pursuant to the Supreme Court decision in Evans Wanjala Wanyonyi –vs- Republic  eKLR, Court of appeal Criminal appeal No. 312 of 2018 at Eldoret .b.That the sentence already served be warranted as sufficient and this Court set aside the sentence of twenty 920) years with the sentence so far served.c.That the Applicant be present during the Hearing of this Application.
4.The Respondent filed their Replying Affidavit on 21st February, 2022 sworn by Mr. Mwongera deposing as follows:-a.That the Applicant was convicted and sentenced to serve 20 years’ imprisonment.b.That the Applicant appealed to the High Court in HCRA No. 70 of 2013, whereupon the Appeal was dismissed and both the conviction and sentence upheld.c.That the Applicant should first exhaust his right of Appeal to the Court of Appeal.d.That the doctrine of functus officio bars this Court form proceeding with this matter since it heard and substantively dealt with the appeal.e.That this application lacks merit and should be dismissed in its entirety.
5.The Applicant filed his written submissions on 12/01/2022 and the Respondent filed theirs on 27/07/2022.
Applicant’s Written Submissions
6.That the Court of Appeal in the case of Evans Wanjala Wanyonyi gave the specifically the guidelines given at Clause 70 & 71 which provided 8 (eight) tests to be applied by the courts when resentencing:a.Age of the offenderb.Being a first offenderc.Whether the offender pleaded guiltyd.Character and record of the offendere.Commission of the offence in response to gender –based violencef.Remorsefulness of the offenderg.The possibility of reform and social re-adaptation of the offenderh.Any other factor that the Court considers relevant
7.The Applicant submitted that he regrets the unfortunate incident as he caused a lot of agonies to the complainant and his entire family too and he is remorseful. He has made peace with himself and with God. That for the few years that he has been in prison he has acquired skills for personal development as well as helping my fellow inmates. He has acquired certificates in painting grade I, II & III as well as Certificate in sign writing Grade II & III. He prays that he be given a second chance so that he go back home and mentor his 2 children as well as provide for his immediate family and his ailing mother.
8.Reliance was made in the case of Evans Wanjala Wanyonyi –vs- Republic  eKLR held:
9.The Applicant further prays that this Court sentences him to a term equivalent to the number of years he has served or any other appropriate sentence the Court will consider fit but be persuaded by his submissions herein in.
10.The Respondent submitted that this Court has already dealt with this matter vide HCRA No. 70 of 2013 whereby the Appeal was dismissed and conviction and sentence upheld therefore the Applicant should first exhaust his right of Appeal to the Court of Appeal. This Court is therefore functus officio.
11.Reliance is made in the case of Telkom Kenya limited –vs- John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)  eKLR the Court observed thus;
12.Once a Court becomes functus officio the only orders it can grant are review orders which are an exception to the functus officio doctrine. This was aptly summarized in the case of Jersey Evening Post Limited –vs- Al Thani  JLR 542 at 550 which was cited and applied by the Supreme Court in Raila Odinga & 2 others –vs- IEBC & 3 Others  eKLR that:
13.The Court perused the Court File High Court Criminal Appeal 70 of 2013, where the Appellant appealed against conviction and sentence against the Trial in Kajiado Criminal Case 653 of 2012.
14.By Judgment delivered on 21st July 2015 by Hon P. Nyamweya J (as she then was) where the conviction and sentence were upheld.
Section 333(2) 0f the Criminal Procedure Code
15.In this Court the Applicant sought that the sentence of 20 years imprisonment be computed in compliance of Section 333(2) of Criminal Procedure Code by taking into account the period the Applicants spent in custody during trial upto the date of sentencing.
16.The Judiciary Sentencing Policy Guidelines at paragraph 7.10 and 7.11 are to the effect that the proviso to Section 333 (2) of the Criminal Procedure Code obligates the Court to take into account the time already served in custody if the convicted person had been in custody during the trial.
17.The High Court is vested with appellate and supervisory jurisdiction over matters heard and determined by the Magistrates’ Court.
18.The instant case, the appeal was heard and determined in the High Court as the Court of 1st appellate Court. The 1st Appellate Court is of similar, competent and concurrent jurisdiction as this Court. Therefore, the Court cannot revise or amend its judgment or Ruling after pronouncement and delivery. The Court cannot legally interfere with the Judgment or Ruling of the trial Court of equal and similar jurisdiction as is the case herein. In short, this Court lacks jurisdiction to entertain the question of conviction and resentencing, the computation of sentence provided by Section 333(2) cPC in a matter heard and determined by a similar Court and lacks appellate powers to hear and determine the appeal.
19.For these reasons, outlined above Section 333(2) criminal procedure code though mandatory, is to be applied on a case by case basis taking into account the jurisdiction of the Court availability of the original record and confirmation that the Applicant was/is in custody for a determinate period before sentencing.
Disposition1.This Court is functus officio over its own decisions and the Applicant should move to the Court of Appeal.2.The application is dismissed.