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JudgmentJAMES NYASINGA ABOKI VS The Republic3 min read

JAMES NYASINGA ABOKI VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

  1. The Applicant was convicted for the offence of rape contrary to Section 3 of the Sexual Offences Act and sentenced to serve 20 years imprisonment by the trial court. He filed an Appeal before this Court (differently constituted) vide HCCR Appeal No. 281 od 2018 which was dismissed by Maina J.
  2. The Applicant filed the Application that is the subject of this ruling on 5th May 2023 under Section 333(2) of the Criminal Procedure Code seeking orders that the period he spent in pre-trial custody be deducted from his imprisonment period. The Application is supported by the Applicant\'s affidavit and is premised on the following grounds: -
  3. That the Court has unlimited jurisdiction.
  4. That Article 165 (3) (d) (i) of the Constitution vests power to the High Court to hear applications of this nature.
  5. That the Applicant was so remorseful being a first offender and was well reformed and currently in prison undertaking industry training. That he had attained Grade 3 in tailoring and dressmaking as shown in exhibits 1 and 2.
  6. That he was so remorseful and disciplined to an extent that the prison authorities had recommended and awarded him with a recommendation letter attached to the Affidavit as exhibit 3. 
  7. At the hearing of the Application, Mr. Chirchir, learned Prosecution Counsel, submitted that this Court is functus officio and that the Applicant could only appeal against the sentence before the Court of Appeal.
  8. Section 333 (2) of the Criminal Procedure Code stipulates thus: -

(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

  1. As already stated in this ruling, the Applicant’s appeal before this court (differently constituted) was heard and determined. This means that this Court has already considered the questions around the legality of the conviction and sentence passed by the trial court. The question that begs an answer is whether this court has the jurisdiction to once again consider the legality of the sentence. Under the circumstances, it must down its tools. It is trite that jurisdiction is everything without which a court must down its tools. (see Owners of the Motor Vessel “Lilian S” vs. Caltex Oil Kenya Ltd [1989] KLR, 1).
  2. I am in agreement with the argument by the Respondent that this court is functus officio and cannot entertain the instant application. I associate myself with the holding of Prof. Ngugi J. (as he then was) in John Kagunda Kariuki vs. Republic [2019] eKLR where he held thus: -

“8. …… In other words, persons whose appeals have already been heard by the High Court are not entitled to file fresh applications for re-sentencing in accordance with the new decisional law. To reach a different conclusion would lead to an ungovernable situation where all previously sentenced prisoners would seek review of their sentences......”

  1. The doctrine of functus officio was laid out in Jersey Evening Post Limited vs. Al Thani [2002] JLR 542 at 550 thus: -

“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”

  1. I find that, in the circumstances of this case, having become functus officio, this court has no mandate to reconsider the sentence under Section 333 (2). It is my view that the Applicant’s grievance can only be addressed before the Court of Appeal.
  2. In conclusion, I find that the instant application is not merited and I therefore dismiss it.
  3. It is so ordered.

DATED


    JAMES NYASINGA ABOKI VS The Republic JAMES NYASINGA ABOKI VS The Republic