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The Applicant, John Mobisa Ondara, was charged and convicted in Keroka Criminal Case No. 29 of 2014 with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The section provides that—
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
Upon conviction, the applicant was sentenced to serve twenty (20) years’ imprisonment.
Aggrieved, the Applicant lodged an appeal to this Court vide Nyamira High Court Criminal Appeal No. 59 of 2016, which appeal was heard and dismissed on 12 th October 2018, t hereby upholding both the conviction and sentence of the trial court.
The Application
By a Notice of Motion dated 31 st January 2025, the Applicant seeks to be resentenced to a reduced or non-custodial sentence. The application is expressed to be brought under paragraphs 4.8.14, 4.8.16(iii) and 4.8.18 of the Sentencing Policy Guidelines, 2023. The Applicant prays that this Court be pleased to hear evidence affecting sentence, including a pre-sentence report, and to consider his mitigation and time already served, given that he is a first offender of advanced age and a reformed person.
The Respondent opposes the application, contending that this Court lacks jurisdiction to review or resentence the Applicant since his appeal in Nyamira HCCRA No. 59 of 2016 was conclusively determined by a Judge of concurrent jurisdiction, and the decision remains binding unless overturned by the Court of Appeal.
Issue for Determination
The main issue for determination is whether this Court has jurisdiction to review or alter a sentence already affirmed by a Judge of concurrent jurisdiction in Nyamira HCCRA No. 59 of 2016.
Analysis
It is undisputed that the Applicant’s appeal was heard and dismissed by this Court in Nyamira HCCRA No. 59 of 2016 , thereby affirming both conviction and sentence. Upon delivering judgment in its appellate capacity, this Court became functus officio in respect of that matter and cannot revisit or vary that decision.
In Joseph Nduvi Mbuvi v Republic [2019] eKLR , the Court of Appeal held:
“Once a matter has been heard and determined by the High Court, that court becomes functus officio and cannot reopen or review its decision unless specifically provided for under the law.”
From the foregoing, this court finds that it lacks jurisdiction to entertain a resentencing application where the sentence has already been affirmed on appeal by another Judge of concurrent jurisdiction. The Sentencing Policy Guidelines, 2023 , relied upon by the applicant, cannot override the clear constitutional and statutory limits on jurisdiction.
Conclusion
In view of the foregoing, the application dated 31 st January 2025 is hereby dismissed for want of jurisdiction.
Appearances
Court Assistant - Hilda
Applicant - Present in person
For the DPP - Mr. Chirchir (SADPP)
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The Applicant, John Mobisa Ondara, was charged and convicted in Keroka Criminal Case No. 29 of 2014 with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The section provides that—
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
Upon conviction, the applicant was sentenced to serve twenty (20) years’ imprisonment.
Aggrieved, the Applicant lodged an appeal to this Court vide Nyamira High Court Criminal Appeal No. 59 of 2016, which appeal was heard and dismissed on 12 th October 2018, t hereby upholding both the conviction and sentence of the trial court.
The Application
By a Notice of Motion dated 31 st January 2025, the Applicant seeks to be resentenced to a reduced or non-custodial sentence. The application is expressed to be brought under paragraphs 4.8.14, 4.8.16(iii) and 4.8.18 of the Sentencing Policy Guidelines, 2023. The Applicant prays that this Court be pleased to hear evidence affecting sentence, including a pre-sentence report, and to consider his mitigation and time already served, given that he is a first offender of advanced age and a reformed person.
The Respondent opposes the application, contending that this Court lacks jurisdiction to review or resentence the Applicant since his appeal in Nyamira HCCRA No. 59 of 2016 was conclusively determined by a Judge of concurrent jurisdiction, and the decision remains binding unless overturned by the Court of Appeal.
Issue for Determination
The main issue for determination is whether this Court has jurisdiction to review or alter a sentence already affirmed by a Judge of concurrent jurisdiction in Nyamira HCCRA No. 59 of 2016.
Analysis
It is undisputed that the Applicant’s appeal was heard and dismissed by this Court in Nyamira HCCRA No. 59 of 2016 , thereby affirming both conviction and sentence. Upon delivering judgment in its appellate capacity, this Court became functus officio in respect of that matter and cannot revisit or vary that decision.
In Joseph Nduvi Mbuvi v Republic [2019] eKLR , the Court of Appeal held:
“Once a matter has been heard and determined by the High Court, that court becomes functus officio and cannot reopen or review its decision unless specifically provided for under the law.”
From the foregoing, this court finds that it lacks jurisdiction to entertain a resentencing application where the sentence has already been affirmed on appeal by another Judge of concurrent jurisdiction. The Sentencing Policy Guidelines, 2023 , relied upon by the applicant, cannot override the clear constitutional and statutory limits on jurisdiction.
Conclusion
In view of the foregoing, the application dated 31 st January 2025 is hereby dismissed for want of jurisdiction.
Appearances
Court Assistant - Hilda
Applicant - Present in person
For the DPP - Mr. Chirchir (SADPP)
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