[2022] KEHC 2935 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The subsequent clarification by the Supreme Court in 2021 reaffirmed...
Source-derived case information.
- Citation
- [2022] KEHC 2935 (KLR)
- Parties
- Applicant: Donald Crispo Ganihizu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 87 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application and petition dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Sentence Review, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donald Crispo Ganihizu
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR on mandatory sentences apply to offences other than murder, specifically robbery with violence?
- 2 Does the High Court have jurisdiction to review the applicant's sentence for robbery with violence in light of the Supreme Court's clarification?
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The subsequent clarification by the Supreme Court in 2021 reaffirmed that the Muruatetu decision does not extend to other offences such as robbery with violence under section 296(2) of the Penal Code. Consequently, the High Court has no jurisdiction to review or alter the applicant's sentence for robbery with violence based on the Muruatetu precedent. The application and petition for sentence review are therefore incompetent and must be dismissed.
Court Disposition
application and petition dismissed for want of jurisdiction
Orders
- The application and petition for sentence review are dismissed as incompetent.
- The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. 87 OF 2019
DONALD CRISPO GANIHIZU...........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 16th April 2018, filed herein on 12th April 2018, is principally founded 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 applicant seeks review of his sentence, where he had been convicted of robbery with violence, contrary to section 296(2) of the Penal Code, in Vihiga PMCCRC No. 128 of 2002, and was sentenced to death, which was later commuted to life imprisonment by the President of the Republic of Kenya. He filed appeal in Kakamega HCCRA No. 28 of 2003, which was dismissed.
3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, as defined in 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, in view of the directions given 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). The application and petition are incompetent.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS…………14TH………………..DAY OF ………JANUARY……….……………. 2022
W MUSYOKA
JUDGE