1.By a chamber summons application filed in court on July 29, 2022, the applicant is seeking for review of the sentence meted against him vide Criminal Case No3042 of 2013 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. The application is supported by an affidavit sworn by the applicant
2.The respondent has not filed any 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 (1) of the Sexual Offences Act and an alternative count of committing an indecent act contrary to section 11 of the said Act. He was subsequently convicted on the main count and sentenced to life imprisonment.
3.However, he subsequently appealed against the decision vide High Court Criminal Case No. 13 of 2015. The appeal was heard and dismissed in its entirety on November 17, 2016. He then filed a Miscellaneous Criminal Application No. E027 of 2021, seeking for re-sentencing but the application was also dismissed.
4.In my considered opinion, once the appeal was heard in this court and a final decision rendered, this court became functus officio. According to Ulpian, after a judge has delivered his judgment, he immediately ceases to be the judge:
5.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.
6.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;
8.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. Even then he has lodged an Appeal at the Court of Appeal and cannot litigate the same subject matter in two different courts.
9.It is so ordered.