[2021] KEHC 2182 (KLR)
The court held that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the Muruatetu decision does not apply....
Source-derived case information.
- Citation
- [2021] KEHC 2182 (KLR)
- Parties
- Applicant: Dominic Shibia Omulubi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 45 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Sentence Review, Robbery With Violence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Shibia Omulubi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for robbery with violence under section 296(2) of the Penal Code?.
- 2 Does the High Court have jurisdiction to review a sentence for robbery with violence based on the Muruatetu decision?.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the Muruatetu decision does not apply. Consequently, the High Court lacks jurisdiction to review or alter the sentence imposed for robbery with violence on the basis of the Muruatetu precedent. The application was therefore incompetent and was struck out for want of jurisdiction.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent.
- The file is closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 45 OF 2020
DOMINIC SHIBIA OMULUBI.....................................................................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, the undated chamber summons filed herein on 10th September 2020, 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 robbery with violence, under section 296(2) of the Penal Code, in Butere SRMCCRC No. 292 of 2007, and was sentenced to life imprisonment. He filed appeal in Kakamega HCCRA No. 99 of 2009, the appellate courts affirmed the conviction in Butere SRMCCRC No. 292 of 2007, and confirmed the sentence.
3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, as defined in section 296(2) of the Penal Code, the decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), therefore, does not apply to it. As a consequence, the High Court has no jurisdiction to review the sentence that was imposed by the trial court, 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). Since there is no jurisdiction on my part to entertain the application, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE