[2021] KEHC 1315 (KLR)
The court held that the Supreme Court's decision in Muruatetu does not apply to convictions for Robbery with Violence, as clarified by the Supreme Court in its 2021 decision. The Applicant's conviction and sentence had already been reviewed on appeal, and the High Court lacks jurisdiction to re-hear or alter the...
Source-derived case information.
- Citation
- [2021] KEHC 1315 (KLR)
- Parties
- Applicant: David Wakoli Walubengo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 154 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Robbery With Violence, Sentencing Principles, Jurisdiction, Application of Supreme Court Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wakoli Walubengo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu v Republic [2017] eKLR applies to the Applicant's conviction for Robbery with Violence.
- 2 Whether the High Court has jurisdiction to re-hear or review the Applicant's sentence after the appeal was determined.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu does not apply to convictions for Robbery with Violence, as clarified by the Supreme Court in its 2021 decision. The Applicant's conviction and sentence had already been reviewed on appeal, and the High Court lacks jurisdiction to re-hear or alter the sentence. The only available remedy for the Applicant is to file an appeal to the Court of Appeal. Consequently, the application for resentencing lacks merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
- The Applicant may pursue an appeal to the Court of Appeal if so advised.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
MISC. CRIMINAL APPLICATION NO. 154 OF 2019
DAVID WAKOLI WALUBENGO..............................APPLICANT
VERSUS
REPUBLIC..............................................................RESPONDENT
RULING
The Applicant, David Wakoli Walubengo was convicted of Robbery with Violencecontrary to Section 296(2) of the Penal Code. The trial Magistrate court found that the prosecution had established, to the required standard of proof, that the Applicant, with another, while armed with dangerous weapons namely a rifle and a panga , robbed Ezekiel Wanyonyi Khaemba of a Motorcycle registration No. KMCX 260N make TVS Star, a mobile phone and Kshs 3000/= and immediately after the time of such robbery injured the said Ezekiel Wanyonyi Khaemba. The Applicant was sentenced to death. He was aggrieved by his conviction and sentence. He filed an appeal to this court. His appeal against conviction was dismissed. However, the death sentence that was imposed on him was set aside and substituted by a custodial sentence of ten (10) years imprisonment. The court directed that the sentence would take effect from 23rd May 2019.
That would have been the end of the matter but for the widow opened by the Supreme Court’s decision of Francis Karioko Muruatetu Vs Republic [2017] eKLR. In that case, the court declared mandatory death sentences to be unconstitutional as it deprived an accused the chance to mitigate his sentence and further that it deprived the court sentencing discretion. Although the Court of Appeal extended this principle to affect Robbery with Violence and Sexual Offences cases, the Supreme Court in a later decision in Francis Karioko Muruatetu V- Republic [2021] eKLR clarified that the decision only applied to those convicted of Murder and not any other offence. Unfortunately for the Applicant, his case falls within the category of cases excluded by the Supreme Court from the application of the above decision.
In the premises therefore, the only remedy available to the Applicant is to file an appropriate appeal to the Court of Appeal. This court lacks jurisdiction to re-hear the question regarding the sentence of the Applicant because that issue was determined by a court of concurrent jurisdiction. The Application
lacks merit and is hereby dismissed.
DATED AT KITALE THIS 16TH DAY OF DECEMBER 2021.
L. KIMARU
JUDGE