Case ID:165469

Michael Kyalo Munyao v Republic [2020] eKLR

Case Metadata

Case Number:

Miscellaneous Criminal Application 114 of 2019

Parties:

Michael Kyalo Munyao v Republic

Date Delivered:

27 Oct 2020

Case Class:

Criminal

Court:

High Court at Machakos

Case Action:

Ruling

Judge(s):

David Kipyegomen Kemei

Citation:

Michael Kyalo Munyao v Republic [2020] eKLR

Court Division:

Criminal

County:

Machakos

Case Outcome:

Applicant’s application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei - J

MISCELLANEOUS CRIMINAL APPL. NO. 114 OF 2019

MICHAEL KYALO MUNYAO...............APPLICANT

VERSUS

REPUBLIC............................................RESPONDENT

RULING ON RESENTENSING

1. Michael Kyalo Munyao, the Applicant herein was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.

2. The Applicant pleaded not guilty and the case proceeded to full hearing. He was convicted of the main count and that the trial court sentenced him to serve life imprisonment.

3. The Applicant was aggrieved by that decision and filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgement was delivered on 29.11.2018 by this court. The judgement dismissed the appeal and upheld both the conviction and sentence.

4. The Applicant did file a notice of appeal on 18.12.2018 with intention to file a 2

nd

appeal against the decision of the High Court to the Court of Appeal. In addition, the applicant did file a new Application before this court in which he seeks review of sentence pursuant to the decision in

Evans Wanjala Wanyonyi (2019) eKLR

and

Francis Karioko Muruatetu & Another v R (2017) eKLR

5. From the import of the functus officio doctrine the applicant is not entitled to resentencing.

6. Once a court becomes functus officio, the only orders it can grant are review orders which are an exception to the functus officio doctrine. The Supreme Court in

Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR

stated that:

“

A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available

.”

7. Because the matter is already in the Court of appeal and handling the application on its merits would be tantamount to concurrent consideration of the same matter in two different courts and a disregard for the hierarchy of courts. This court has no jurisdiction to supervise a superior court. In this regard the applicant’s application ought to be directed to the Court of Appeal where his appeal is pending consideration.

8. The upshot is that the applicant’s application filed on 31.7.2019 seeking for resentencing lacks merit. The same is dismissed.

It is so ordered.

Dated and delivered at Machakos this 27

th

day of October, 2020.

D. K. Kemei

Judge