[2021] KEHC 2260 (KLR)
The High Court determined 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 petitioner's conviction and sentence were for robbery with violence under section 296(2) of the Penal...
Source-derived case information.
- Citation
- [2021] KEHC 2260 (KLR)
- Parties
- Appellant: Bonface Agomba Alias Nandwa Chenelwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 39 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Competence of Petition
- Outcome
- Petition struck out for want of jurisdiction and incompetence.
- 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
Bonface Agomba Alias Nandwa Chenelwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Competence of Petition
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence for robbery with violence based on the Supreme Court decision in Muruatetu.
- 2 Whether the Muruatetu decision on mandatory sentences applies to offences other than murder.
Ratio Decidendi
The High Court determined 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 petitioner's conviction and sentence were for robbery with violence under section 296(2) of the Penal Code, an offence to which the Muruatetu decision does not apply. Consequently, the High Court has no jurisdiction to review the sentence on the basis of Muruatetu, rendering the petition incompetent and subject to being struck out.
Court Disposition
Petition struck out for want of jurisdiction and incompetence.
Orders
- The petition is struck out as incompetent.
- 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
CRIMINAL PETITION NO. 39 OF 2019
BONFACE AGOMBA Alias NANDWA CHENELWA.........................................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 1st April 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, in Kakamega CMCCRC No. 646 of 2005, and was sentenced to death. He filed appeals in Kakamega HCCRA No. 60 of 2009 and Kisumu CACRA No. 187 of 2012, both of which were 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 petition, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar to cause copies of this ruling to be availed to the petitioner and the office of the Director of Public Prosecutions.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER, 2021
W MUSYOKA
JUDGE