[2022] KEHC 2908 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the 2021 directions, is strictly confined to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(2) of...
Source-derived case information.
- Citation
- [2022] KEHC 2908 (KLR)
- Parties
- Applicant: Antony Mache Malenya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 17 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Defilement, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Mache Malenya
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR on mandatory sentences apply to offences other than murder, specifically defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence for defilement in light of the Supreme Court's clarification?
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the 2021 directions, is strictly confined to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(2) of the Sexual Offences Act, the Muruatetu decision does not apply. Consequently, the High Court has no jurisdiction to review the applicant's sentence for defilement on the basis of the Muruatetu jurisprudence. The application for sentence review is therefore incompetent and the file is ordered closed.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application for sentence review is dismissed as incompetent.
- The file herein is to be closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
PETITION NO. 17 OF 2019
ANTONY MACHE MALENYA .....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, filed herein on 5th March 2019, is principally founded 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 applicant seeks review of his sentence, where he had been convicted of defilement, contrary to section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega SRMCCRC No. 58 of 2013, and was sentenced to life imprisonment. His appeal, in Kakamega HCCRA No. 39 of 2015, was dismissed. The outcome of his appeal to the Court of Appeal, in Kisumu CACRA No. 160 0f 2017, was not disclosed.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8(1)(2) of the Sexual Offences Act, 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, in view of the directions given 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). The application is incompetent. The file herein is to 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 14TH DAY OF JANUARY,2022
W MUSYOKA
JUDGE