[2021] KEHC 1189 (KLR)
The Supreme Court's clarification in the 2021 Muruatetu directions restricts the application of its 2017 decision to mandatory sentences for murder only. Since the applicant was convicted of defilement under the Sexual Offences Act, the High Court has no jurisdiction to review the sentence imposed by the trial...
Source-derived case information.
- Citation
- [2021] KEHC 1189 (KLR)
- Parties
- Applicant: Benard Muaka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 95 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Application for Sentence Review
- Outcome
- Application dismissed for want of jurisdiction; file closed.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Defilement Offence, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Muaka
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory sentences for 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 directions?
Ratio Decidendi
The Supreme Court's clarification in the 2021 Muruatetu directions restricts the application of its 2017 decision to mandatory sentences for murder only. Since the applicant was convicted of defilement under the Sexual Offences Act, the High Court has no jurisdiction to review the sentence imposed by the trial court. The application for sentence review is therefore incompetent and must be dismissed. The file is to be closed.
Court Disposition
Application dismissed for want of jurisdiction; file closed.
Orders
- The application for review of sentence is dismissed as incompetent.
- The file herein is to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
PETITION NO. 95 OF 2019
BENARD MUAKA...................................................................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 Motion herein, undated, 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 petitioner 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, Laws of Kenya, in Kakamega CMCCRC No. 309 of 2007, and was sentenced to serve life in jail. He filed an appeal at the High Court at Kakamega, being HCCRA No. 34 of 2007, whose outcome is not disclosed. He says that he has not exhausted his appeals.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in 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 Motion is incompetent. The file herein 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.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER 2021
W MUSYOKA
JUDGE