[2023] KEHC 23350 (KLR)
The High Court lacks jurisdiction to re-sentence the petitioner because the Court of Appeal has already exercised its discretion under the Muruatetu jurisprudence by setting aside the mandatory death penalty and substituting it with a term of imprisonment. The Supreme Court's guidance in the Muruatetu cases...
Source-derived case information.
- Citation
- [2023] KEHC 23350 (KLR)
- Parties
- Applicant: Henry Mulamba Bwire; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E008 of 2022
- Procedural Posture
- Criminal Petition / Ruling on Application for Re Sentencing
- Outcome
- application dismissed
- Judges
- WM Musyoka
- Legal Topics
- Murder Sentencing, Mandatory Sentences, Resentencing Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Mulamba Bwire
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence the petitioner after the Court of Appeal already substituted the mandatory death sentence with a term of imprisonment.
- 2 Whether the Supreme Court's decision in Francis Karioko Muruatetu applies to the petitioner's circumstances.
Ratio Decidendi
The High Court lacks jurisdiction to re-sentence the petitioner because the Court of Appeal has already exercised its discretion under the Muruatetu jurisprudence by setting aside the mandatory death penalty and substituting it with a term of imprisonment. The Supreme Court's guidance in the Muruatetu cases restricts the application of its principles to murder cases and does not extend to situations where the appellate court has already reviewed and revised the sentence. Any further relief regarding remission or clemency must be sought through administrative channels within the prison system or the Mercy Committee, not through the courts.
Court Disposition
application dismissed
Orders
- The application dated January 11, 2022 is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
Bwire v Republic (Criminal Petition E008 of 2022) [2023] KEHC 23350 (KLR) (13 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23350 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Petition E008 of 2022
WM Musyoka, J
October 13, 2023
Between
Henry Mulamba Bwire
Petitioner
and
Republic
Respondent
Ruling
1. The application, dated January 11, 2022, principally seeks re-sentencing. The petitioner had been convicted, in Busia HCCRC No 11 of 2012, of murder, contrary to section 203, as read with section 204, of the Penal Code, Cap 63, Laws of Kenya, which attracts, upon conviction, a penalty of mandatory death, and the trial court had imposed that sentence, on November 20, 2014. His appeal to the Court of Appeal, in Kisumu HCCRA No 46 of 2016, was dismissed, as per the judgment of November 21, 2019.
2. The application rides on the decision in Francis Karioko Muruatetu & another v Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), where the court laid down a general principle that all mandatory sentences were unconstitutional, and allowed trial and appellate courts discretion to re-visit cases where mandatory sentences had been imposed, with a view to revising or reviewing them. The Supreme Court re-visited the issue, in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ), and stated that its decision in Francis Karioko Muruatetu & another v Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ) was of application only in murder cases.
3. I note from the judgment of the Court of Appeal, reported as Henry Mulamba Bwire & another v Republic [2019] eKLR (Nambuye, Makhandia & Kantai, JJA), that the death penalty was set aside, and substituted with imprisonment for 25 years. As Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ) was applied by the Court of Appeal in Henry Mulamba Bwire & another v Republic[2019] eKLR (Nambuye, Makhandia & Kantai, JJA), I cannot revisit the sentence. I have no jurisdiction. If the petitioner feels that he has reformed sufficiently, then let him canvass the matter within the prison system, for remission of sentence, or with the Mercy Committee for consideration.
4. Accordingly, there is no merit in the application, dated January 11, 2022, and I hereby dismiss it. Orders accordingly.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 13TH DAY OF OCTOBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesHenry Mulamba Bwire, the petitioner, in person.Mrs. Chekonga, instructed by the Director of Public Prosecutions, for the respondent.