[2021] KEHC 13705 (KLR)
The High Court determined that the Supreme Court's decision in Muruatetu, which declared mandatory sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. Since the petitioner's conviction was for robbery with violence under section 296(2), the Muruatetu principles did...
Source-derived case information.
- Citation
- [2021] KEHC 13705 (KLR)
- Parties
- Appellant: Appolo Olenja Apitsa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 38 of 2020
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Competence of Petition
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Robbery With Violence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Appolo Olenja Apitsa
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Competence of Petition
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence for robbery with violence based on the Supreme Court decision in Muruatetu.
- 2 Whether the Muruatetu decision applies to offences other than murder.
Ratio Decidendi
The High Court determined that the Supreme Court's decision in Muruatetu, which declared mandatory sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. Since the petitioner's conviction was for robbery with violence under section 296(2), the Muruatetu principles did not apply. Consequently, the High Court lacked jurisdiction to review or alter the sentence imposed for robbery with violence based on Muruatetu. The petition was therefore 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
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 38 OF 2020
APPOLO OLENJA APITSA.............................................................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 petition herein, undated, but filed herein on 17th November 2020, 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. 2288 of 2012, and was sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. He filed appeals in Kakamega HCCRA No. 20 of 2014 and Kisumu CACRA No. 34 of 2015, both of which were dismissed by the appellate courts, save that the Court of Appeal reduced the sentence to twenty years.
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