Njuguna v Republic [2022] KEHC 16504 (KLR)

Njuguna v Republic (Miscellaneous Criminal Application E051 of 2022) [2022] KEHC 16504 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16504 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application E051 of 2022

GL Nzioka, J

December 8, 2022

Between

Samuel Muya Njuguna

Applicant

and

Republic

Respondent

Ruling

1. By an application filed in court on August 15, 2022, the applicant is seeking for sentence review of the sentence meted out vide Chief Magistrate’s criminal case No 52 of 2015, at Naivasha. He prays that, the court be pleased to revise the sentence to a lenient one as provided for under article 50(2) (p) (q) of the Constitution of Kenya and take into account the provisions of section 333(2) of the Criminal Procedure Code.

2. The application was served but no response was filed. However, I note from the materials placed before the court that, the applicant was arraigned before the Chief Magistrates Court charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of Sexual Offences Act. He was subsequently convicted and sentenced to life imprisonment.

3. He subsequently appealed against the decision vide High Court Criminal case No 62 of 2016, but the appeal was dismissed. He then moved to the Court of Appeal, although the appeal number has not been revealed. Even then, as that appeal was still pending, the applicant filed, Miscellaneous Criminal Application No 26 of 2020, seeking for re-sentencing after the decision in the case now famously referred to as “Muruatetu’s” case.

4. The re-sentencing application was heard and a decision rendered on the September 17, 2021, whereby the court held that, it had no jurisdiction to apply the principles of Muruatetu’s case in sexual offences. The applicant has once again filed the current application for sentence review.

5. In my considered opinion once the appeal was heard in this court and final decision rendered, this court become “functus officio".The law of functus officio thus dictates that, decision-makers; judges, administrative officials, or arbitrators, cannot as a general rule re-open their decisions to correct a mistake. There is no opportunity for them to; “do better next time” in the same case because there will be no next time. They must get it right the first time, for that will be their only time.

6. Further, in the Journal by the University of Queensland, on “The Finality of Judicial Decisions”, it is stated that, a court becomes functus officio in the following events;a)A judicial tribunal, becomes functus officio in respect of decisions made by it before it becomes defunct;b)The judicial tribunal's powers to revise its own decisions or to re-try any case after decisions made by it in the original trial have been rescinded.

7. Furthermore having returned to court for re-sentencing and been advised that, the court has no jurisdiction, the filing of this application amounts to an abuse of the court process and therefore I strike it out accordingly for want of jurisdiction.

8. The applicant should go to the Court of Appeal, if dissatisfied with the decision of the High Court. In fact, the High Court appeal file and the trial court file have already been forwarded to the Court of Appeal.

9. Those then are the orders herein.

DATED, DELIVERED AND SIGNED ON THIS 8TH DAY OF DECEMBER, 2022. GRACE L. NZIOKAJUDGEIn the presence of:-Ms Ogutu - Court assistantApplicant in personMr. Ndiema for the Respondent