[2022] KEHC 10466 (KLR)
The court held that it lacked jurisdiction to entertain the petitioner's application for resentencing in respect of the offence of robbery with violence. This was because the Supreme Court, in its 2021 clarification (Muruatetu II), expressly limited the application of its 2017 decision on the unconstitutionality of...
Source-derived case information.
- Citation
- [2022] KEHC 10466 (KLR)
- Parties
- Appellant: Shaban Okumu Achesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 107 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Re Sentencing Application
- Outcome
- petition dismissed
- Judges
- WM Musyoka
- Legal Topics
- Mandatory Sentencing, Resentencing Jurisdiction, Robbery With Violence, Supreme Court Guidance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shaban Okumu Achesa
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Re Sentencing Application
Legal Issues
- 1 Whether the court has jurisdiction to re-sentence the petitioner for robbery with violence following the Supreme Court's clarification in Muruatetu II.
- 2 Whether the principle in Francis Karioko Muruatetu & another v Republic [2017] eKLR applies to offences other than murder.
- 3 Whether the petitioner's sentence can be reviewed a second time after already benefiting from the initial Muruatetu decision.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the petitioner's application for resentencing in respect of the offence of robbery with violence. This was because the Supreme Court, in its 2021 clarification (Muruatetu II), expressly limited the application of its 2017 decision on the unconstitutionality of mandatory sentences to murder cases only. The petitioner had already benefited from the initial application of Muruatetu, resulting in a reduction of his sentence from death to ten years' imprisonment. A second review was not permissible, and the application was deemed an abuse of court process. Consequently, the petition was dismissed for want of merit and lack of jurisdiction.
Court Disposition
petition dismissed
Orders
- The undated Motion filed on December 16, 2019 is dismissed as unmerited and an abuse of court process.
- Copies of these proceedings to be availed to Shaban Okumu Achesa and to the Office of Director of Public Prosecutions Kakamega.
Full Case Text
Judgment text and source record
21 paragraphs
Achesa v Republic (Criminal Petition 107 of 2019) [2022] KEHC 10466 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10466 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Petition 107 of 2019
WM Musyoka, J
June 24, 2022
Between
Shaban Okumu Achesa
Petitioner
and
Republic
Respondent
Ruling
1. The undated petition herein, filed on October 9, 2020, seeks re-sentencing. The petitioner had been convicted in Mumias PMCCRC No. 3 of 2017, of robbery with violence and rape, and was given the mandatory death penalty, which was reduced to imprisonment for ten years, following orders made in Kakamega HCCRA No. 64 of 2018, which declared the sentence unconstitutional and remitted the matter to the trial court for re-sentencing on the robbery with violence conviction.
2. The petition, no doubt, rides on the decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), where the court appeared to lay down a general principle that all mandatory sentences were unconstitutional, and to allow trial and appellate courts discretion to re-visit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.
3. The Supreme Court has since re-visited the issue in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), and clarified that its decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) was of application only in murder cases, and not any other.
4. The offence that the petitioner was convicted of was robbery with violence, as defined in the Penal Code, Cap 63, Laws of Kenya. The decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) is, therefore, of no application, and I have no discretion or jurisdiction to do that which the petitioner is inviting me to do.
5. From the tenor of the pleadings, it is clear that the applicant benefited from Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), before the clarification in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ). The issue of his sentence being re-visited for a second time for review is not tenable.
6. The undated Motion filed on December 16, 2019 is, therefore, not merited, and it is in abuse of court process. Let copies of these proceedings be availed to Shaban Okumu Achesa and to the Office of Director of Public Prosecutions Kakamega.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24TH DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Shaban Okumu Achesa, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.