1. The Petitioner was charged before the Kyuso Law Court in S.O. Case No. 7 of 2020 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. He was tried, convicted and sentenced to fifteen (15) years’ imprisonment on 02nd September 2021.
2. Being dissatisfied with the conviction and sentence, the Petitioner appealed to this Court in HCCRA E027 of 2023. The appeal was heard and determined on 14th October 2024, when it was dismissed and the conviction and sentence upheld.
3. The present Petition is undated and was forwarded through Embu Main Prison on 15th January 2025. It invokes Articles 22(1), 23(1), 25(d), 50(1), 51(2), 20(1), (2) and (4), 21(1), 48, 258(1), 25(c), 27(1) and (2), 47, 50(2)(p), 51(1), 23(1) and 165(3) of the Constitution, together with sections 333(1) and (2) of the Criminal Procedure Code. Although the Petition erroneously refers to S.O. Case No. 9 of 2020 and a sentence of twenty years’ imprisonment, the original record establishes that the proceedings arose from S.O. Case No. 7 of 2020 and that the sentence was fifteen years’ imprisonment. The Court will therefore proceed on the basis of the original record.
4. The Petitioner contends that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by failing to take into account the period he had spent in custody before sentence, thereby rendering his sentencing unfair. He consequently seeks a declaration to that effect and a declaration that he is entitled to the benefit of the law under Articles 25(c), 27(1) and (2), 50(2)(p) and 51(1) of the Constitution. He further seeks review or reduction of the sentence, relying on sections 216 and 329 of the Criminal Procedure Code, and asks that he be resentenced or set at liberty.
5. In support of the reliefs sought, the Petitioner states that he has suffered during his incarceration and has appreciated the consequences of crime; that the complainant was over seventeen years old and the matter was suitable for alternative dispute resolution; that he is a first offender with no previous criminal record; and that he is remorseful and has been rehabilitated during the period served. He further states that he is an orphan without family. The Petition was filed in person, and he asks that no costs be imposed because he is a pauper without means.
6. The first issue for consideration is whether, having finally determined the Petitioner's appeal, this Court is still seized of jurisdiction to revisit the question of sentence. This question must be considered against the doctrine of functus officio, which safeguards the finality of judicial determinations. In Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), the Court of Appeal described the doctrine as an enduring principle of law which “prevents the re-opening of a matter before a court that rendered the final decision thereon.” The doctrine therefore raises a threshold question as to the extent, if any, to which this Court may revisit a sentence after having conclusively determined the appeal.
7. The starting point is the nature of the determination previously made by this Court. HCCRA E027 of 2023 was heard and determined by a differently constituted Court, which, on 14th October 2024, dismissed the appeal and upheld both the conviction and sentence. The present Petition must therefore be considered in light of that final appellate determination and the doctrine of functus officio. The question is whether the matters now raised fall within any recognised exception that would permit the Court to revisit its earlier determination.
8. In Lusaka v Republic [2023] KECA 1071 (KLR), the Court of Appeal recognised limited circumstances in which a court may intervene notwithstanding the principle of functus officio. The Petitioner has not pointed to any such circumstance. His grievance essentially concerns the sentence that was the subject of the appeal already determined by this Court. The Court must therefore examine whether the statutory and constitutional provisions relied upon provide a lawful basis for reopening that sentence.
9. The Petitioner relies on sections 216 and 329 of the Criminal Procedure Code and urges the Court to reconsider the sentence on the basis of his personal circumstances, including his status as a first offender, remorse and rehabilitation. It is therefore necessary to consider what jurisdiction those provisions confer. Section 216 provides that, before passing sentence or making an order against an accused person under section 215, the court may receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. Section 329 similarly provides that, before passing sentence, the court may receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. The provisions thus relate to the material that may be considered by a court at the sentencing stage and do not provide a procedure for reopening a sentence after an appeal has been determined.
10. The Petitioner further invokes section 333(2) of the Criminal Procedure Code in relation to the period he spent in custody before sentence. That provision requires that, where a person sentenced to imprisonment has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. It consequently governs the computation of the term of imprisonment at the point of sentencing. It does not, by itself, confer a power upon an appellate court to reopen a sentence after the appeal has been finally determined.
11. The Petitioner invokes Articles 22 and 23 of the Constitution, which guarantee access to the Court for redress where a right or fundamental freedom has been denied, violated, infringed or threatened, and empower the High Court to grant appropriate relief. The Court has considered the complaint advanced in the Petition and finds that it does not disclose any separate or independent violation of a constitutional right. In substance, the complaint seeks a reconsideration of the sentence which this Court previously considered and upheld in HCCRA E027 of 2023. I therefore find that the constitutional character given to the Petition does not alter the nature of the relief sought.
12. The Petitioner also contends that the complainant was over seventeen years old and also seeks alternative dispute resolution. These matters arise from the original criminal proceedings and do not disclose any independent constitutional or legal ground for reopening the sentence. They were matters that could properly have been raised in the appeal and cannot now be relied upon to circumvent the finality of the determination in HCCRA E027 of 2023.
13. This Court has considered the Petitioner's personal circumstances, including his unrepresented status and incarceration. While those circumstances may explain the nature of the relief sought, they do not provide a basis for reopening the sentence after the Court had finally determined the appeal. The Court's jurisdiction must be exercised within the limits prescribed by the Constitution and the law, and personal circumstances cannot, without a recognised legal basis, revive an appellate jurisdiction that has already been exhausted.
14. Having considered the doctrine of functus officio, the provisions relied upon by the Petitioner and the nature of the relief sought, the Court finds that the present Petition does not disclose a lawful basis for reopening the concluded appellate determination.
15. The Petition is accordingly dismissed for want of jurisdiction.
2. Being dissatisfied with the conviction and sentence, the Petitioner appealed to this Court in HCCRA E027 of 2023. The appeal was heard and determined on 14th October 2024, when it was dismissed and the conviction and sentence upheld.
3. The present Petition is undated and was forwarded through Embu Main Prison on 15th January 2025. It invokes Articles 22(1), 23(1), 25(d), 50(1), 51(2), 20(1), (2) and (4), 21(1), 48, 258(1), 25(c), 27(1) and (2), 47, 50(2)(p), 51(1), 23(1) and 165(3) of the Constitution, together with sections 333(1) and (2) of the Criminal Procedure Code. Although the Petition erroneously refers to S.O. Case No. 9 of 2020 and a sentence of twenty years’ imprisonment, the original record establishes that the proceedings arose from S.O. Case No. 7 of 2020 and that the sentence was fifteen years’ imprisonment. The Court will therefore proceed on the basis of the original record.
4. The Petitioner contends that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by failing to take into account the period he had spent in custody before sentence, thereby rendering his sentencing unfair. He consequently seeks a declaration to that effect and a declaration that he is entitled to the benefit of the law under Articles 25(c), 27(1) and (2), 50(2)(p) and 51(1) of the Constitution. He further seeks review or reduction of the sentence, relying on sections 216 and 329 of the Criminal Procedure Code, and asks that he be resentenced or set at liberty.
5. In support of the reliefs sought, the Petitioner states that he has suffered during his incarceration and has appreciated the consequences of crime; that the complainant was over seventeen years old and the matter was suitable for alternative dispute resolution; that he is a first offender with no previous criminal record; and that he is remorseful and has been rehabilitated during the period served. He further states that he is an orphan without family. The Petition was filed in person, and he asks that no costs be imposed because he is a pauper without means.
6. The first issue for consideration is whether, having finally determined the Petitioner's appeal, this Court is still seized of jurisdiction to revisit the question of sentence. This question must be considered against the doctrine of functus officio, which safeguards the finality of judicial determinations. In Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), the Court of Appeal described the doctrine as an enduring principle of law which “prevents the re-opening of a matter before a court that rendered the final decision thereon.” The doctrine therefore raises a threshold question as to the extent, if any, to which this Court may revisit a sentence after having conclusively determined the appeal.
7. The starting point is the nature of the determination previously made by this Court. HCCRA E027 of 2023 was heard and determined by a differently constituted Court, which, on 14th October 2024, dismissed the appeal and upheld both the conviction and sentence. The present Petition must therefore be considered in light of that final appellate determination and the doctrine of functus officio. The question is whether the matters now raised fall within any recognised exception that would permit the Court to revisit its earlier determination.
8. In Lusaka v Republic [2023] KECA 1071 (KLR), the Court of Appeal recognised limited circumstances in which a court may intervene notwithstanding the principle of functus officio. The Petitioner has not pointed to any such circumstance. His grievance essentially concerns the sentence that was the subject of the appeal already determined by this Court. The Court must therefore examine whether the statutory and constitutional provisions relied upon provide a lawful basis for reopening that sentence.
9. The Petitioner relies on sections 216 and 329 of the Criminal Procedure Code and urges the Court to reconsider the sentence on the basis of his personal circumstances, including his status as a first offender, remorse and rehabilitation. It is therefore necessary to consider what jurisdiction those provisions confer. Section 216 provides that, before passing sentence or making an order against an accused person under section 215, the court may receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. Section 329 similarly provides that, before passing sentence, the court may receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. The provisions thus relate to the material that may be considered by a court at the sentencing stage and do not provide a procedure for reopening a sentence after an appeal has been determined.
10. The Petitioner further invokes section 333(2) of the Criminal Procedure Code in relation to the period he spent in custody before sentence. That provision requires that, where a person sentenced to imprisonment has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. It consequently governs the computation of the term of imprisonment at the point of sentencing. It does not, by itself, confer a power upon an appellate court to reopen a sentence after the appeal has been finally determined.
11. The Petitioner invokes Articles 22 and 23 of the Constitution, which guarantee access to the Court for redress where a right or fundamental freedom has been denied, violated, infringed or threatened, and empower the High Court to grant appropriate relief. The Court has considered the complaint advanced in the Petition and finds that it does not disclose any separate or independent violation of a constitutional right. In substance, the complaint seeks a reconsideration of the sentence which this Court previously considered and upheld in HCCRA E027 of 2023. I therefore find that the constitutional character given to the Petition does not alter the nature of the relief sought.
12. The Petitioner also contends that the complainant was over seventeen years old and also seeks alternative dispute resolution. These matters arise from the original criminal proceedings and do not disclose any independent constitutional or legal ground for reopening the sentence. They were matters that could properly have been raised in the appeal and cannot now be relied upon to circumvent the finality of the determination in HCCRA E027 of 2023.
13. This Court has considered the Petitioner's personal circumstances, including his unrepresented status and incarceration. While those circumstances may explain the nature of the relief sought, they do not provide a basis for reopening the sentence after the Court had finally determined the appeal. The Court's jurisdiction must be exercised within the limits prescribed by the Constitution and the law, and personal circumstances cannot, without a recognised legal basis, revive an appellate jurisdiction that has already been exhausted.
14. Having considered the doctrine of functus officio, the provisions relied upon by the Petitioner and the nature of the relief sought, the Court finds that the present Petition does not disclose a lawful basis for reopening the concluded appellate determination.
15. The Petition is accordingly dismissed for want of jurisdiction.