[2021] KEHC 2150 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier jurisprudence on mandatory sentencing to murder cases under section 204 of the Penal Code. Since the petitioners were convicted of robbery with violence under section 296(2), the High...
Source-derived case information.
- Citation
- [2021] KEHC 2150 (KLR)
- Parties
- Applicant: Ainea Lumbaso; Applicant: Gerison Phillip Mbogo; Applicant: Joseph Mwera Orembe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 9 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Robbery With Violence, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ainea Lumbaso
Applicant
Gerison Phillip Mbogo
Applicant
Joseph Mwera Orembe
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review sentences for robbery with violence based on the Supreme Court decision in Muruatetu.
- 2 Whether the Muruatetu jurisprudence on mandatory sentencing applies to offences other than murder.
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier jurisprudence on mandatory sentencing to murder cases under section 204 of the Penal Code. Since the petitioners were convicted of robbery with violence under section 296(2), the High Court had no jurisdiction to review their sentences on the basis of Muruatetu. The application for sentence review was therefore incompetent and was struck out.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application for review of sentence is struck out as incompetent.
- The file is closed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 9 OF 2019
AINEA LUMBASO…………………………………..……...…..…..…..…….1ST PETITIONER
GERISON PHILLIP MBOGO………………………………………………2ND PETITIONER
JOSEPH MWERA OREMBE……………………………………………….3RD PETITIONER
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 application herein, the undated Motion filed herein on 22nd November 2019, 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 petitioners seek review of their sentences, where they had been convicted of robbery with violence, under section 296(2) of the Penal Code, , in Butali SRMCCRC No. 1074 of 2010, and were sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. They filed appeals in Kakamega HCCRA No. 51 of 2011 and Kisumu CACRA No. 41 of 2013, both appellate courts affirmed the conviction.
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 application, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12th DAY OF November 2021
W MUSYOKA
JUDGE