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JudgmentJoseph Omondi Ojwang VS The Republic2 min read

Joseph Omondi Ojwang VS The Republic

High Court at Nyahururu High Court · · Lilian Mutende

  1. Joseph Omondi Ojwang, the applicant, was indicted, tried, convicted by the lower court presided over by Hon. V. Ochanda RM on two (2) counts: (1) Assault contrary to Section 251 of the Penal Code. (2) Sexual Assault contrary to Section 5(1) of the Sexual Offences Act, and sentenced to serve six (6) months; and, ten (10) years imprisonment, respectively. His first appeal to the High Court was dismissed by RPV Wendoh J for lack of merit. In the judgment dated 25th November,2019, the court found that the sentence was lenient.
  2. Through an un-dated application filed herein on 19th September, 2022, the applicant seeks an order of this court, taking into account time spent in custody. Section 333(2) of the Criminal Procedure Code obligates a trial court to consider time spent in custody during trial.
  3. Article 50(2) (q) of the Constitution provides that:

(2) Every accused person has the right to a fair trial, which includes the right—(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

  1. The applicant exercised the stipulated right of appeal and a decision was reached by the High Court, a court of a similar jurisdiction with the instant court. This means that this court lacks the power to re-examine the decision. It is a principle of law that such a court having rendered the decision becomes functus officio as it determined the question of sentence with conclusiveness. The matter cannot be re-opened because it is functus officio.
  2. The Supreme Court expounding on the doctrine of functus officio in Raila Odinga & Others v IEBC & Others [2013] eklr citing with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832 stated thus:

“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

  1. The upshot of the above is that this court being functus officio is not seized of jurisdiction to determine the matter. In the result, the application fails and is dismissed.
  2. It is so ordered.


    Joseph Omondi Ojwang VS The Republic Joseph Omondi Ojwang VS The Republic