[2021] KEHC 1756 (KLR)
The court held that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The offence in question was robbery with violence under section 296(2), not murder. The Supreme Court's subsequent...
Source-derived case information.
- Citation
- [2021] KEHC 1756 (KLR)
- Parties
- Applicant: Benson Mandili Mashemo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 78 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Sentence Review, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Mandili Mashemo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory death sentences for robbery with violence under section 296(2) of the Penal Code?.
- 2 Does the High Court have jurisdiction to review the applicant's sentence in light of the Supreme Court's clarification?.
- 3 Is the application for sentence review competent before the High Court?.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The offence in question was robbery with violence under section 296(2), not murder. The Supreme Court's subsequent clarification in 2021 confirmed that the Muruatetu decision did not extend to other offences carrying mandatory sentences. Consequently, the High Court lacked jurisdiction to review the applicant's sentence for robbery with violence on the basis of Muruatetu. 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 is struck out as incompetent for want of jurisdiction.
- 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
MISCELLANEOUS APPLICATION NO. 78 OF 2019
BENSON MANDILI MASHEMO.........................................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 30th September 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 robbery with violence, under section 296(2) of the Penal Code, Cap 63, Laws of Kenya, in Butere SRMCCRC No. 292 of 2010, and was sentenced to death. He filed appeal in Kakamega HCCRA No. 157 of 2010 and Kisumu CACRA No. 77 of 2014, where both appellate courts affirmed the conviction in Butere SRMCCRC No. 292 of 2010, and confirmed the sentence.
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 copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE