1. Before the Court is the Applicant’s Notice of Motion dated 14th October 2025, expressed to be brought under Articles 22, 23, 29, 50 and 165 of the Constitution and section 333(2) of the Criminal Procedure Code. The Applicant seeks, in substance, an order that the period spent in custody during trial be taken into account as part of the sentence served, and a consequential reduction or adjustment of sentence.
2. The application is supported by the Applicant’s affidavit sworn on 14th October 2025. The Applicant depones that he was arrested on 16th October 2010, charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, tried, convicted on 12th October 2018 and sentenced to thirty (30) years’ imprisonment, the sentence being ordered to run from the date of conviction. He contends that the failure to take into account the period he spent in custody during trial occasioned an injustice and violated his constitutional rights.
3. The Respondent opposed the application. The principal ground of opposition is that this Court is functus officio, the Applicant having exhausted his appellate avenues. It was submitted that the Applicant appealed against both conviction and sentence to the Court of Appeal in Criminal Appeal No. 37 of 2019 at Kisumu, and that the said appeal was dismissed in its entirety, with the decision of the trial court being affirmed. It was therefore contended that this Court lacks jurisdiction to reopen, review, vary or interfere with the sentence.
4. I have considered the application, the affidavit on record, and the rival positions taken by the parties. The sole issue that arises for determination is whether this Court is functus officio and therefore bereft of jurisdiction to entertain the present application.
5. The doctrine of functus officio is a long-standing principle of law grounded in the need for finality in litigation. Once a court has performed its function by rendering a final decision, and that decision has been taken through the appellate hierarchy provided by law, the court becomes functus officio and cannot revisit the merits of the decision except as expressly permitted by statute.
6. In response, the Applicant confirmed that his appeal to the Court of Appeal in Criminal Appeal No. 37 of 2019 was indeed dismissed, but urged the Court to nonetheless grant relief under section 333(2) of the Criminal Procedure Code and the Constitution.
7. Once the Court of Appeal pronounced itself on the matter, this Court’s jurisdiction over the conviction and sentence was fully spent. Any attempt to reopen the sentence, whether framed as a constitutional petition, a miscellaneous application, or an invocation of section 333(2) of the Criminal Procedure Code, would amount to sitting on appeal over a decision that has already been affirmed by a superior appellate court.
8. The Applicant has placed reliance on section 333(2) of the Criminal Procedure Code. That provision obligates a sentencing court to take into account the period spent in custody before sentence. However, where the question of sentence has already been subjected to appellate scrutiny and affirmed, the proper forum for redress, if any, does not lie with the court whose decision has already been confirmed on appeal. To hold otherwise would undermine the doctrine of finality and invite endless litigation over concluded criminal proceedings.
9. The Applicant also invoked constitutional provisions. It is now settled that constitutional jurisdiction cannot be used as a collateral avenue to re-litigate issues that were, or ought to have been, raised and determined on appeal. The Constitution does not operate to clothe this Court with jurisdiction where the law has expressly brought litigation to a close.
10. In the circumstances of this case, and in light of the Applicant’s own confirmation that his appeal to the Court of Appeal was dismissed, I am satisfied that this Court is functus officio in respect of both the conviction and the sentence. The application is therefore incompetent for want of jurisdiction.
11. Accordingly, the Notice of Motion dated 14th October 2025 is hereby dismissed.
2. The application is supported by the Applicant’s affidavit sworn on 14th October 2025. The Applicant depones that he was arrested on 16th October 2010, charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, tried, convicted on 12th October 2018 and sentenced to thirty (30) years’ imprisonment, the sentence being ordered to run from the date of conviction. He contends that the failure to take into account the period he spent in custody during trial occasioned an injustice and violated his constitutional rights.
3. The Respondent opposed the application. The principal ground of opposition is that this Court is functus officio, the Applicant having exhausted his appellate avenues. It was submitted that the Applicant appealed against both conviction and sentence to the Court of Appeal in Criminal Appeal No. 37 of 2019 at Kisumu, and that the said appeal was dismissed in its entirety, with the decision of the trial court being affirmed. It was therefore contended that this Court lacks jurisdiction to reopen, review, vary or interfere with the sentence.
4. I have considered the application, the affidavit on record, and the rival positions taken by the parties. The sole issue that arises for determination is whether this Court is functus officio and therefore bereft of jurisdiction to entertain the present application.
5. The doctrine of functus officio is a long-standing principle of law grounded in the need for finality in litigation. Once a court has performed its function by rendering a final decision, and that decision has been taken through the appellate hierarchy provided by law, the court becomes functus officio and cannot revisit the merits of the decision except as expressly permitted by statute.
6. In response, the Applicant confirmed that his appeal to the Court of Appeal in Criminal Appeal No. 37 of 2019 was indeed dismissed, but urged the Court to nonetheless grant relief under section 333(2) of the Criminal Procedure Code and the Constitution.
7. Once the Court of Appeal pronounced itself on the matter, this Court’s jurisdiction over the conviction and sentence was fully spent. Any attempt to reopen the sentence, whether framed as a constitutional petition, a miscellaneous application, or an invocation of section 333(2) of the Criminal Procedure Code, would amount to sitting on appeal over a decision that has already been affirmed by a superior appellate court.
8. The Applicant has placed reliance on section 333(2) of the Criminal Procedure Code. That provision obligates a sentencing court to take into account the period spent in custody before sentence. However, where the question of sentence has already been subjected to appellate scrutiny and affirmed, the proper forum for redress, if any, does not lie with the court whose decision has already been confirmed on appeal. To hold otherwise would undermine the doctrine of finality and invite endless litigation over concluded criminal proceedings.
9. The Applicant also invoked constitutional provisions. It is now settled that constitutional jurisdiction cannot be used as a collateral avenue to re-litigate issues that were, or ought to have been, raised and determined on appeal. The Constitution does not operate to clothe this Court with jurisdiction where the law has expressly brought litigation to a close.
10. In the circumstances of this case, and in light of the Applicant’s own confirmation that his appeal to the Court of Appeal was dismissed, I am satisfied that this Court is functus officio in respect of both the conviction and the sentence. The application is therefore incompetent for want of jurisdiction.
11. Accordingly, the Notice of Motion dated 14th October 2025 is hereby dismissed.