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Court of AppealDismissedMisc Criminal Application No. E325 of 2020· [2021] KECA 491 (KLR)

Njonjo Gitono v Republic [2021] KECA 491 (KLR)

High Court of Kenya
2 June 2021
1,414 words in judgment
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The bottom line

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Kenya's High Court cannot re-sentence you after the Court of Appeal has already ruled on your sentence; only higher courts can.

What this practically means

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Executive summary

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This is a ruling of the High Court of Kenya at Nairobi (Criminal Division, Misc Criminal Application No. E325 of 2020) delivered by Grace L. Nzioka, J, on 2 June 2021, on the applicant's petition for resentencing. The applicant had been convicted of murder by Lessit, J, sentenced to death, and on appeal the Court of Appeal (Criminal Appeal 512 of 2010, judgment of 22 March 2019) substituted a conviction for manslaughter and a sentence of twenty years' imprisonment. He then petitioned the High Court seeking declarations that the failure to hear him in mitigation and to credit time spent in custody violated his fair-trial rights, orders to be heard in mitigation under Sections 216 and 329 of the Criminal Procedure Code, and that his sentence run from his date of arrest (27 July 2009). The court held it had no jurisdiction: the Court of Appeal, a superior court, had determined both conviction and sentence, rendering the High Court functus officio; under Article 165(6) the High Court's supervisory powers extend only to subordinate courts; and any grievance should be taken to the Court of Appeal or the Supreme Court. In the alternative, the court found no merit on the facts, relying on the pre-sentence report showing failed reconciliation and community opposition. All orders sought were declined; no costs order was made. The decision is significant for its application of the functus officio doctrine to criminal resentencing petitions following appellate determination.

Key legal issues

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01

Jurisdiction of the High Court to re-open sentence after a Court of Appeal determination

Holding

The High Court lacks jurisdiction; the doctrine of functus officio bars it from revisiting a matter determined by the Court of Appeal.

Reasoning

The jurisdiction of an appellate court is superior to that of the trial court. The Court of Appeal had heard the applicant's appeal against both conviction and sentence and substituted the death sentence with 20 years' imprisonment. Once that superior court pronounced itself, the issue could only be escalated to the Supreme Court. Article 165(6) gives the High Court supervisory powers only over subordinate courts, not superior courts.

p. 2
02

Application of Sections 216 and 329 of the Criminal Procedure Code vis-a-vis Section 333(2)

Holding

Sections 216 and 329 concerns cannot be pursued under Section 333(2); those provisions apply to the court passing sentence, whose jurisdiction was extinguished on appeal.

Reasoning

The court held that the constitutional issues raised, citing Sections 216 and 329 of the Criminal Procedure Code, cannot be a subject of Section 333(2). The court 'that passes sentence' means the trial court or the appellate court, and the High Court's jurisdiction was extinguished once the appeal was heard and determined by the Court of Appeal.

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Merits of resentencing based on the pre-sentence report

Holding

Even assuming jurisdiction, the application lacked merit: reconciliation had not materialised, the applicant's son wanted nothing to do with him, and the area Chief indicated he would not be welcome back.

Reasoning

The court considered the pre-sentence report and found no indication that the deceased's relatives were interviewed as sources of information; attempted reconciliation had not materialised; the applicant's son expressly rejected him; and the area Chief stated he might not be welcome in the residential area on a non-custodial sentence. The mother of the deceased wanted the offender jailed.

p. 2

Legal principles established

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  • Once a superior court has pronounced itself on an issue, that issue can only be escalated to a higher court, and the lower court becomes functus officio as to that matter.
  • In criminal cases, a judge's judicial role ends once sentence is imposed; thereafter any changes to orders are ministerial or administrative acts.

Court orders

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  1. 1.The court declined to grant any of the orders sought in the petition dated 20 November 2020
  2. 2.It is so ordered

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
  • Criminal Procedure CodeSection 216
  • Criminal Procedure CodeSection 329
  • Criminal Procedure CodeSection 333(2)
  • Constitution of Kenya, 2010Article 165(6)

Cases cited (3)

  • Raila Odinga & Others vs. IEBC & Others
    Election Petitions Nos. 3, 4 & 5 (2013) eKLR
  • R v Melvin
    2005 NSSC 368 (CanLII)
  • Re St. Nazaire Co
    (1879), 12 Ch. D. 88
On appeal from
Court of Appeal
Criminal Appeal 512 of 2010
Jurisdiction invoked
Original supervisory and resentencing jurisdiction of the High Court; the court expressly found it lacked jurisdiction, invoking Article 165(6) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njonjo Gitono v Republic [2021] KECA 491 (KLR)", Case Analysis (2021). Misc Criminal Application No. E325 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/491/eng@2021-06-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.