[2021] KEHC 2283 (KLR)
The court held that the Supreme Court's decision in Muruatetu applies to mandatory death sentences for murder, granting the High Court jurisdiction to review such sentences. However, the court cannot proceed with the review without the original High Court proceedings and the Court of Appeal judgment. The applicant...
Source-derived case information.
- Citation
- [2021] KEHC 2283 (KLR)
- Parties
- Applicant: Bonventure Muhkwana Mutali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E020 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Directions on Sentence Review Application
- Outcome
- Application for sentence review deferred pending filing of trial and appellate records.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Sentence Review, Murder Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonventure Muhkwana Mutali
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Directions on Sentence Review Application
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic applies to the applicant's case for sentence review.
- 2 Whether the High Court can review the applicant's sentence for murder in light of the Muruatetu decision.
- 3 Whether the court can proceed with sentence review without the original trial and appellate records.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu applies to mandatory death sentences for murder, granting the High Court jurisdiction to review such sentences. However, the court cannot proceed with the review without the original High Court proceedings and the Court of Appeal judgment. The applicant must provide these records before the court can exercise its discretion to review the sentence. The matter will be mentioned for further directions once the necessary documents are filed.
Court Disposition
Application for sentence review deferred pending filing of trial and appellate records.
Orders
- Applicant to place on record the High Court proceedings and Court of Appeal judgment.
- Deputy Registrar to allocate a mention date once records are filed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E020 OF 2021
BONVENTURE MUHKWANA MUTALI............................................................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, undated, but filed herein on 8th March 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 petitioner seeks review of his sentence, where he had been convicted of murder, under section 203 and 204 of the Penal Code, in Kakamega HCCRC No. 10 of 1990. He filed an appeal at the Court of Appeal at Kisumu, but he has not given particulars, which he says was dismissed, with the conviction being affirmed and the sentence of death confirmed.
3. The offence, the subject of the instant proceedings is murder, and, therefore, the decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), applies. As a consequence, the High Court has jurisdiction to review the sentence that was imposed by it, 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).
4. However, I cannot embark on the exercise of considering review of the sentence without sight of the proceedings at the High Court, plus the judgment of the court, and that of the Court of Appeal on appeal. The applicant shall place the said material on record, for they are critical to any exercise of discretion under Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). Once the material is placed on record, the Deputy Registrar shall allocate the matter a date for mention before the Judge.
5. 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