[2021] KEHC 2161 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision restricts the application of its 2017 ruling to mandatory sentences for murder only, and not to other offences such as robbery with violence under section 296(2) of the Penal Code. Furthermore, since the applicant had already filed...
Source-derived case information.
- Citation
- [2021] KEHC 2161 (KLR)
- Parties
- Applicant: Athanas Khaemba Bakwea; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E058 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Preliminary Objection/abuse of Process
- Outcome
- application struck out as abuse of process
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Abuse of Process, Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Athanas Khaemba Bakwea
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Preliminary Objection/abuse of Process
Legal Issues
- 1 Whether the application for review of sentence based on the Muruatetu decision is tenable for robbery with violence convictions.
- 2 Whether the current application constitutes an abuse of court process due to a similar prior application.
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision restricts the application of its 2017 ruling to mandatory sentences for murder only, and not to other offences such as robbery with violence under section 296(2) of the Penal Code. Furthermore, since the applicant had already filed a similar application (Kakamega High Court Miscellaneous Application No. 43 of 2020) based on the same facts and seeking the same orders, the current application was deemed an abuse of court process. Consequently, the application was struck out.
Court Disposition
application struck out as abuse of process
Orders
- The application is struck out as an abuse of court process.
- The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E058 OF 2021
ATHANAS KHAEMBA BAKWEA..................................................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 application herein, the undated Motion filed herein on 22nd April 2021, 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 applicant seeks review of his sentences, where he had been convicted of robbery with violence, under section 296(2) of the Penal Code, Cap 63, Laws of Kenya, in Kakamega CMCCRC Nos. 1268 of 2009 and 452 of 2010, and was sentenced to ten and fifteen years imprisonment, respectively. He filed appeals in Kakamega HCCRA Nos. 173 of 2011 and 211 of 2011, and Kisumu CACRA No. 41 of 2014, the appellate courts affirmed the convictions in Kakamega CMCCRC Nos. 1268 of 2009 and 452 of 2010, and confirmed the sentences.
3. The application herein is brought by the same applicant as in Kakamega High Court Miscellaneous Application No. 43 of 2020, and it is based on the same set facts, and seeks similar or the same orders. Kakamega High Court Miscellaneous Application No. 43 of 2020 was the first to be filed, and, therefore, the instant application was filed in abuse of court process, and it is hereby struck out.
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 15TH DAY OF NOVEMBER, 2021
W MUSYOKA
JUDGE