[2021] KEHC 2197 (KLR)
The court held that the Supreme Court's decision in Muruatetu, which allowed for judicial discretion in sentencing for murder, does not extend to cases of robbery with violence. The petitioner, convicted of robbery with violence, had already benefited from a sentence of twenty years imprisonment instead of the...
Source-derived case information.
- Citation
- [2021] KEHC 2197 (KLR)
- Parties
- Appellant: Benard Musindi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E052 of 2021
- Procedural Posture
- Criminal Petition / Ruling
- Outcome
- Petition dismissed; file closed.
- Judges
- DN Musyoka
- Legal Topics
- Sentencing Principles, Mandatory Sentences, Remand Time Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Musindi
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling
Legal Issues
- 1 Whether the time spent in remand should be reckoned in the determination of sentence for robbery with violence.
- 2 Whether the Supreme Court decision in Muruatetu applies to mandatory sentences for robbery with violence.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu, which allowed for judicial discretion in sentencing for murder, does not extend to cases of robbery with violence. The petitioner, convicted of robbery with violence, had already benefited from a sentence of twenty years imprisonment instead of the mandatory death sentence prescribed by law. The court found that it had no jurisdiction to review the sentence further or reckon the time spent in remand, as the law does not permit such discretion for robbery with violence. Consequently, the petition for sentence review was dismissed and the file ordered closed.
Court Disposition
Petition dismissed; file closed.
Orders
- The petition for sentence review is dismissed.
- The file is ordered closed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. E052 OF 2021
BENARD MUSINDI........................................................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 22nd April 2021, seeks the reckoning of the time spent in remand in determination of sentence. The petitioner was convicted of robbery with violence, contrary to section 296(2) of the penal Code, and sentenced to twenty years in jail instead of the mandatory death sentence. 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) clarified that for robbery with violence there was no discretion. In that instant case, the petitioner benefited from a sentence that the trial court ought not to have imposed. He should have been sentenced to death. In the circumstances the review that he seeks is not available. The file shall be closed.
3. The Deputy Registrar shall cause copies of this ruling to be vailed 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