[2021] KEHC 2259 (KLR)
The High Court determined that it lacked jurisdiction to review the petitioner's sentence for robbery with violence under section 296(2) of the Penal Code, as the Supreme Court in Muruatetu (2021) expressly limited the application of its earlier decision on mandatory death sentences to murder cases only. The...
Source-derived case information.
- Citation
- [2021] KEHC 2259 (KLR)
- Parties
- Petitioner: Elphas Ali Luvisia; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 29 of 2018
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Robbery With Violence, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elphas Ali Luvisia
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the High Court have jurisdiction to review a sentence for robbery with violence based on the Supreme Court's decision in Muruatetu?
- 2 Does the Muruatetu decision on mandatory sentences apply to offences other than murder?
Ratio Decidendi
The High Court determined that it lacked jurisdiction to review the petitioner's sentence for robbery with violence under section 296(2) of the Penal Code, as the Supreme Court in Muruatetu (2021) expressly limited the application of its earlier decision on mandatory death sentences to murder cases only. The petitioner's reliance on Muruatetu was therefore misplaced, and the application for sentence review was incompetent. Consequently, the court struck out the application and ordered the file closed.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application for sentence review is struck out as incompetent.
- The file is ordered closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. 29 OF 2018
ELPHAS ALI LUVISIA..........................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS....................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 12th June 2018, was filed herein on even date, and it 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 Butali SRMCCRC No. 156 of 2009, and was sentenced to death. He filed appeals in Kakamega HCCRA No. 152 of 2009 and Kisumu CACRA No. 136 of 2009, both of which were dismissed by the appellate courts.
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, going by 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). 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 this ruling to be typed, and copies thereof availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 15TH DAY OF NOVEMBER, 2021
W MUSYOKA
JUDGE