[2021] KEHC 1745 (KLR)
The court held that the applicant's reliance on the Muruatetu decision was misplaced, as the Supreme Court clarified that its holding on mandatory sentences was limited to murder cases under section 204 of the Penal Code. The applicant, convicted of burglary and stealing, did not challenge his sentence through an...
Source-derived case information.
- Citation
- [2021] KEHC 1745 (KLR)
- Parties
- Applicant: Conrad Shichende; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E017 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed as irregular; file closed
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Burglary and Stealing, Appeals and Revisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Conrad Shichende
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the applicant is entitled to review of sentence based on the Supreme Court decision in Muruatetu.
- 2 Whether the application for review is properly before the court given the applicant did not appeal or seek revision on grounds of irregularity or impropriety.
Ratio Decidendi
The court held that the applicant's reliance on the Muruatetu decision was misplaced, as the Supreme Court clarified that its holding on mandatory sentences was limited to murder cases under section 204 of the Penal Code. The applicant, convicted of burglary and stealing, did not challenge his sentence through an appeal or by seeking revision on the basis of irregularity or impropriety. As such, the application for review was irregular, not properly before the court, and could not be entertained. The court directed that the file be closed.
Court Disposition
application dismissed as irregular; file closed
Orders
- The application is dismissed as irregular and does not lie.
- The file is to be closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E017 OF 2021
CONRAD SHICHENDE...........................................................................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 Motion herein, dated 5th March 2021, and filed herein on even date, 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 burglary and stealing, under sections 306(b) of the Penal Code, in Kakamega CMCCRC No. 433 of 2020, and was sentenced to serve three years in prison. He elected not to file appeal, but to seek review of sentence.
3. The approach the applicant has chosen is foolhardy. Where an accused person is convicted and sentenced and his aggrieved by the sentence imposed, he files an appeal against sentence. That is what the law establishes. The alternative is to seek revision on grounds that there was an irregularity or impropriety about the process or order made by the court. The applicant does not challenge the sentence on the grounds of either irregularity or impropriety. He lost the opportunity to appeal or to file for revision. The application before court is, therefore, filed irregular and does not lie. The file ought to 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 OF NOVEMBER 2021
W MUSYOKA
JUDGE