Sabatia v Republic [2022] KEHC 9886 (KLR)

Sabatia v Republic (Criminal Revision 909 of 2018) [2022] KEHC 9886 (KLR) (Crim) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9886 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision 909 of 2018

JM Bwonwong'a, J

July 5, 2022

Between

Wesley Lutiali Sabatia

Applicant

and

Republic

Respondent

(Being application for revision of the judgement Hon. Lady Justice G.W. Ngenye-Macharia dated 18th April 2018 in Nairobi High Court Criminal Appeal No. 219 of 2012 Wesley Lutiali Sabatia v Republic)

Ruling

1. The applicant under certificate of urgency applied for revision of a sentence of 20 years imprisonment in respect of the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006.

2. The applicant has deposed to an 8 paragraphs supporting affidavit, in which the major averments are as follows. The trial court did not take into account the period he had been in pre-trial custody as required of it by section 333 (2) of the criminal Procedure Code (Cap 75) Laws of Kenya.

3. Furthermore, the applicant has urged this court to invoke its powers of revisionary powers under section 362 as read with section 354 of the Criminal Procedure Code and revise the said sentence. He has also stated that he is a first offender.

4. The applicant has for the foregoing reasons urged this court to grant his application.

Examination of the record of the trial court. 5. I have perused the record of the trial court. I find that the applicant was sentenced to 20 years imprisonment by the trial court on 23rd July 2012 being the minimum prescribed mandatory sentence by the law.

6. The record also shows that he was a first offender. The trial court did not put into account the period he was in pre-trial custody. The applicant was in custody from 12/04/2011 to the date of judgement of the trial court on 23/07/2012, which translates to 15 months.

The applicant appealed to the High Court. 7. The applicant appealed to the High Court, being Nairobi High Court Criminal Appeal No. 219 of 2012 Wesley Lutiali Sabatia v Republic, and the High Court confirmed both the conviction and sentence of the trial court.

Issues for determination. 1. Whether I have jurisdiction to hear and determine the application.

2. What are the appropriate orders to be made?

I have considered the application of the applicant and the law applicable.

Issue 1 8. I find that the real issue is whether I have jurisdiction to entertain and determine this application in view of the fact the applicant’s appeal was dismissed by this court (G.W. Ngenye-Macharia, J) on 18th April 2018.

9. I find as persuasive the decision of this court (Lesiit, J as then was) inJeremiah Mwita Range v Republic [2020] eKLR, in which that court in relation to the doctrine of functus officio observed that:“…The appellant is challenging the order in sentence by Hon. Kimaru, J. made on the 13th March, 2019. The learned judge is of parallel jurisdiction as this court, meaning that this court has already rendered a final determination on the matter before me. That being the case, this court cannot entertain the instant application. Similarly, it was not open for the Applicant to return to this court to challenge the decision made by this court. In the result, the application is incompetent and is accordingly struck out.”

10. I find this to be a persuasive and compelling pronouncement with which I agree.

11. It is clear that this court is now functus officio having bade the appellant farewell on 18th April 2018 through the judgement of G.W. Ngenye-Macharia, J. As a result of that judgement this court closed its door to the appellant and cannot now open it for him. In other words, this court became functus officio (stopped to have power to hear and pass judgement) and therefore has no jurisdiction (the power to hear and pass judgement) to entertain and determine this application.

12. It therefore follows that this application is incompetent and is hereby struck out.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe applicant in personMs Joy for the Respondent