[2021] KEHC 2163 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory death sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the...
Source-derived case information.
- Citation
- [2021] KEHC 2163 (KLR)
- Parties
- Appellant: Arthur Anguba Muthehisi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 77 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Application for Sentence Review
- Outcome
- application 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
Arthur Anguba Muthehisi
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR applies to mandatory death sentences for robbery with violence under section 296(2) of the Penal Code.
- 2 Whether the High Court has jurisdiction to review the sentence imposed for robbery with violence based on the Muruatetu decision.
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory death sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the Muruatetu jurisprudence does not apply. Consequently, the High Court has no jurisdiction to review or alter the sentence imposed by the trial court for robbery with violence on the basis of the Muruatetu decision. The application was therefore incompetent and was struck out for want of jurisdiction.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application dated 15th October 2019 is struck out as incompetent.
- The file is closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CONSTITUTIONAL PETITION NO. 77 OF 2019
ARTHUR ANGUBA MUTHEHISI....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 Motion dated 15th October 2019, filed herein on even 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. 2418 of 2013, and was sentenced to death. He filed appeal in Kakamega HCCRA No. 133 of 2014, which was dismissed by the appellate court.
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 this ruling to be typed, and copies thereof 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