[2021] KEHC 1744 (KLR)
The High Court determined that it lacks jurisdiction to review sentences for robbery with violence under section 296(2) of the Penal Code based on the Supreme Court's clarification in Muruatetu (2021). The Supreme Court expressly limited the application of its earlier decision on the unconstitutionality of mandatory...
Source-derived case information.
- Citation
- [2021] KEHC 1744 (KLR)
- Parties
- Applicant: Agabitus Milimo Ingavi; Applicant: Desmond Shivonje; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E011 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Jurisdiction and Competence of Sentence Review Application
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Sentence Review, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agabitus Milimo Ingavi
Applicant
Desmond Shivonje
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Jurisdiction and Competence of Sentence Review Application
Legal Issues
- 1 Does the High Court have jurisdiction to review a sentence for robbery with violence based on the Supreme Court decision in Muruatetu?
- 2 Does the Muruatetu decision on mandatory sentences apply to offences other than murder?
Ratio Decidendi
The High Court determined that it lacks jurisdiction to review sentences for robbery with violence under section 296(2) of the Penal Code based on the Supreme Court's clarification in Muruatetu (2021). The Supreme Court expressly limited the application of its earlier decision on the unconstitutionality of mandatory death sentences to murder cases only, and not to other offences such as robbery with violence. Consequently, the petition for sentence review was incompetent and was struck out for want of jurisdiction.
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out as incompetent.
- The file shall be closed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E011 OF 2021
AGABITUS MILIMO INGAVI..............................................1ST APPLICANT
DESMOND SHIVONJE.........................................................2ND APPLICANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
RULING
1. This matter was placed before me for the purpose of giving directions, in view of the recent decision by the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others(Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ), with respect to mandatory sentences, where it was clarified that the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), had arisen from proceedings relating to murder, under section 204 of the Penal Code, Cap 63, Laws of Kenya, and the position stated in the said decision was intended to apply only to mandatory sentences with respect to murder cases.
2. The petition herein, undated and filed herein on an unknown date, principally 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), for the petitioner seeks review of his sentence, where he had been convicted of robbery with violence, under section 296(2) of the Penal Code, in Kakamega CMCCRC No. 3786 of 2016. He filed appeal in Kakamega HCCRA No. 90 of 2017, which was consolidated with Kakamega HCCRA No. 92 of 2017.
3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, as defined in section 296(2) of the Penal Code, the decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), therefore, does not apply to it. As a consequence, the High Court has no jurisdiction to review the sentence that was imposed by the trial court, based on the decision in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others(Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ). Since there is no jurisdiction on my part to entertain the petition, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar to cause copies of this ruling to be availed to the petitioner and the office of the Director of Public Prosecutions.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE