[2021] KEHC 2285 (KLR)
The High Court dismissed the petition on the basis that the Supreme Court in Muruatetu only declared the mandatory aspect of the death sentence unconstitutional, not the death sentence itself. The applicant's request for the High Court to declare the death sentence unconstitutional and order a retrial was...
Source-derived case information.
- Citation
- [2021] KEHC 2285 (KLR)
- Parties
- Petitioner: David Amuku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Petition E015nof 20 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Notice of Motion
- Outcome
- petition dismissed
- Legal Topics
- Mandatory Death Sentence, Constitutionality of Penal Code, Appeals Process, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Amuku
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Notice of Motion
Legal Issues
- 1 Whether the mandatory nature of the death sentence under section 204 of the Penal Code is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the High Court can declare the death sentence unconstitutional and order a retrial after the Supreme Court's decision.
- 3 Whether the applicant followed the correct procedure in challenging his conviction and sentence.
Ratio Decidendi
The High Court dismissed the petition on the basis that the Supreme Court in Muruatetu only declared the mandatory aspect of the death sentence unconstitutional, not the death sentence itself. The applicant's request for the High Court to declare the death sentence unconstitutional and order a retrial was misconceived, as it would amount to the High Court sitting on appeal over the Supreme Court's decision, which is not permissible. The correct procedure for the applicant was to seek leave to appeal to the Court of Appeal against his conviction and sentence, not to file a constitutional petition in the High Court. The application was therefore found to be devoid of merit and was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- The applicant is advised to seek necessary leave and appeal his conviction and sentence to the Court of Appeal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PETITION NO.E015 OF 2021 AT BUSIA FROM
ORIGINAL CASE NO.12 OF 2016 AT BUSIA HIGH COURT
DAVID AMUKU...............................................................................PETITIONER
VERSUS
REPUBLIC....................................................................................RESPONDENT
R U L I N G
[1]What we have here by way of notice of motion filed on 24th June 2021 and another filed on 12th July 2021 is an application grounded on the famous of Muruatetu and another in which the Supreme Court of Kenya held that the mandatory nature of the death sentence under s.204 of the Penal Code was unconstitutional but not the death sentence itself. In essence, the death sentence was confirmed and retained as a lawful punishment under Statute Law.
In the circumstances, the present application is clearly a misconception and the outcome of bad advise given to the applicant by ignorant persons without any knowledge of Law. It seeks to have this court declare the death sentence unconstitutional and order a re-trial of the entire case. This is tantamount to asking this court to sit on appeal against the decision of a higher court, in fact, the highest court in the Republic of Kenya.
[2]Rather than this petition, the applicant ought to have followed the correct route of filing an appeal in the Court of Appeal against the conviction and sentence by this court. He cannot be heard to say that the onset of the covid 19 pandemic made him delay in the filing of the appeal as nothing prevented him to move this court by way of a notice of motion or chamber summons for leave to file appeal out of time. His submissions in this petition related more to an argument in support of an appeal rather than a petition of this nature. In sum, the present application is not only devoid of merit but also grossly misconceived. It is therefore dismissed with advice to the applicant to obtain necessary leave and appeal his conviction and sentence to the Court of Appeal.
J.R. KARANJAH
J U D G E
[READ & SIGNED THIS 11TH DAY OF NOVEMBER 2021]