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Asiago v Republic (Criminal Revision E045 of 2022) [2023] KEHC 19983 (KLR) (13 July 2023) (Ruling)
Neutral citation:
[2023] KEHC 19983 (KLR)
Republic of Kenya
Criminal Revision E045 of 2022
WA Okwany, J
July 13, 2023
Between
Enock Gisairo Asiago
Applicant
and
Republic
Respondent
(From the Original Conviction and Sentence of Hon. Lady Justice E. N. Maina dated 22nd July 2021 in the original Nyamira High Court Criminal Case No. 11 of 2020
Criminal Case 11 of 2020
)
Ruling
1.The Applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The Particulars on the Information dated July 3, 2020 were that on the 13th day of May 2020, at Bosiago Village of Bonyunyu location, Masaba North sub-county within Nyamira County murdered Irene Kemunto.
2.The trial proceeded before Maina J. At the close of the trial, the Applicant was convicted of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. He was thereafter sentenced to serve 15 years’ imprisonment.
3.The Applicant filed the instant Application on December 16, 2022 seeking a revision of the sentence. The Application is brought under Articles 24 (1) (e) and 50 (2) (p) of the Constitution 2010 and is supported by the Applicant’s affidavit dated September 5, 2022.
4.The Applicant raises 11 grounds as follows: -
5.At the hearing of the Application, the Applicant urged the Court to review his sentence and consider his mitigation for a less severe sentence to enable him to be reunited with his family.
6.The Applicant submitted that he has young children who are suffering in his absence and that one of children had sustained cut wounds. He submitted that his land had been grabbed by family members who also demolished his house and stole his property.
7.The Prosecution (Respondent) opposed the Application on the grounds that the matter had been heard and determined by the High Court which was the trial court. It was submitted that this Court should not sit on its own appeal or revise a sentence that it had passed. It was argued that the only recourse for the Applicant was at the Court of Appeal.
8.In a rejoinder, the Applicant stated that his plea was purely based on the fact that he had many problems at the family level as his children had no one to fend for them.
9.I have perused the judgement rendered by Maina J and it is clear to me that the Court correctly exercised its jurisdiction and meted out a lawful sentence. I find that this court became functus officio as submitted by the Respondent. In the case of Jersey Evening Post Limited v Al Thani [2002] JLR 542 at 550 it was held thus: -
10.Daniel Malan Pretorius aptly explained the principle of functus officio in his article, ‘The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law’, [2005] 122 SALJ 832 as follows: -
11.My finding is that the Applicant was tried, convicted and sentenced by a court of equal/concurrent status and competent jurisdiction. It thus follows that this Court became functus officio the moment the said judgment was delivered and sentence passed. This Court lacks jurisdiction and I am precluded from interfering with the decision of my predecessor Maina J.
12.My take is that the only recourse available to the Applicant, if he is aggrieved with either the conviction or the sentence, is to appeal to the Court of Appeal.
13.In sum, I find that the application is not merited and I accordingly dismiss it.
14.It is so ordered.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 13TH DAY OF JULY 2023.W. A. OKWANYJUDGE
