[2021] KEHC 2061 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. The applicant's conviction and sentence for defilement under the Sexual Offences Act do not fall...
Source-derived case information.
- Citation
- [2021] KEHC 2061 (KLR)
- Parties
- Applicant: Elphas Muhanji Mutsotso alias Kizito; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 61 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Defilement Offence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elphas Muhanji Mutsotso alias Kizito
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 apply to mandatory sentences for defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence for defilement based on the Muruatetu decision?
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. The applicant's conviction and sentence for defilement under the Sexual Offences Act do not fall within the scope of the Muruatetu jurisprudence. Consequently, the High Court has no jurisdiction to review or interfere with the sentence imposed by the trial court on the basis of the Muruatetu decision. The petition was therefore incompetent and was struck out.
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out as incompetent.
- The file shall be 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. 61 OF 2019
ELPHAS MUHANJI MUTSOTSO alias KIZITO..............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 petition herein, dated 17th July 2019, filed on 19th July 2019, 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 defilement of a girl, under sections 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 1895 of 2010, and was sentenced to serve twenty years in prison. He filed appeal in Kakamega HCCRA No. 127 of 2011 and Kisumu CACRA No. 194 of 2012, where both appellate courts affirmed the conviction in Kakamega CMCCRC No. 1895 of 2010, and confirmed the sentence.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8(1)(2) of the Sexual Offences Act, 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 petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE