Please Wait. Searching ...
Gichiri v Republic (Miscellaneous Criminal Application E162 of 2021) [2023] KEHC 174 (KLR) (5 January 2023) (Ruling)
Neutral citation:
[2023] KEHC 174 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E162 of 2021
GL Nzioka, J
January 5, 2023
Between
Isaac Njogu Gichiri
Applicant
and
Republic
Respondent
Ruling
1.By an application filed in court on, October 22, 2021, the applicant is seeking for review of the sentence meted out against him vide criminal case No 2082 of 1998, at the Chief Magistrate’s Court at Naivasha. He prays that, the court be pleased to revise the sentence to a definite lenient one as provided under; article 50 (2) (p)(q) of the Constitution of Kenya, and take into account the provisions of section 333(2) of the Criminal Procedure Code.
2.The application was served but no response was filed. 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 robbery with violence contrary to section 296 (2) of the Penal Code. He was subsequently convicted and sentenced to suffer death.
3.However, he subsequently appealed against the trial court’s decision vide High Court Criminal Appeal No 628 of 2004, but the appeal was dismissed in its entirety. He then moved to the Court of Appeal, vide Criminal Appeal No 118 of 2005, and similarly the appeal was found to have no merit and dismissed.
4.The applicant subsequently, filed Miscellaneous Criminal Application No 19 of 2019 and Misc Criminal Application No 78 of 2019, both applications were seeking for re-sentencing following the decision in the matter now famously referred to as “Muruatetu” case. However, the court ordered and closed the file holding Miscellaneous Criminal Application No 19 of 2019.
5.The re-sentencing application in Misc Criminal Application No 78 of 2019, was heard and a decision rendered on the September 24, 2021, whereby the court held that, it had no jurisdiction to re-sentence the applicant and dismissed the application. The applicant has once again filed the current application for sentence review.
6.In my considered opinion, once the appeal was heard in this court and a final decision rendered, this court became functus officio. The principle of functus officio is a latin expression that translates to; “having performed the function of his or her office, the decision maker has no power to re-open the matter”
7.According to Ulpian, after a judge has delivered his judgment, he immediately ceases to be the judge:
8.The law of functus officio thus dictates that, decision-makers; judges, administrative officials, or arbitrators, cannot as a general rule re-open their decisions to correct a mistake. There is no opportunity for them to; “do better next time” in the same case because there will be no next time. They must get it right the first time, for that will be their only time.
9.Further, in the journal by the University of Queensland, on “The Finality of Judicial Decisions”, it is stated that, a court becomes functus officio in the following events;
10.In the same vein, the Court of Appeal in the case of; Telkom Kenya Limited v John Ochanda [2014] eKLR, stated that:
11.Furthermore, having returned to court for re-sentencing and been advised that, the court has no jurisdiction, the filing of this application amounts to an abuse of the court process and therefore I strike out the application herein accordingly for want of jurisdiction and/or for being an abuse of the court process.
12.It is so ordered.
Dated, delivered and signed on this 5th day of January 2023GRACE L NZIOKAJUDGEIn the presence of:Applicant in person virtuallyMr. Michuki for the RespondentMs Ogutu-Court Assistant
