[2022] KEHC 2936 (KLR)
The court held that the Supreme Court's decision in Muruatetu, which declared mandatory sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The offence in question was defilement under the Sexual Offences Act, not murder. The Supreme Court's subsequent clarification...
Source-derived case information.
- Citation
- [2022] KEHC 2936 (KLR)
- Parties
- Applicant: Eugine Lumumba Sikwenyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 75 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Defilement Offence, Applicability of Muruatetu, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eugine Lumumba Sikwenyi
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory sentences for defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence in light of the Supreme Court's directions?
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu, which declared mandatory sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The offence in question was defilement under the Sexual Offences Act, not murder. The Supreme Court's subsequent clarification in 2021 reaffirmed that the Muruatetu decision does not extend to other offences with mandatory sentences. Consequently, the High Court has no jurisdiction to review the applicant's sentence for defilement on the basis of Muruatetu. The application was therefore incompetent and the file ordered closed, with the applicant advised to seek administrative review through the...
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application is dismissed as incompetent.
- The file is to 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. 75 OF 2019
EUGINE LUMUMBA SIKWENYI........................................................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, undated, filed herein on 26th September 2019, 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 defilement, contrary to section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Hamisi SRMCCRC No. 471 of 2010, and was sentenced to life in prison. He filed appeals in Kakamega HCCRA No. 148 of 2012 and Kisumu CACRA No. 149 of 2014, and in both the conviction was upheld, but the Court of Appeal substituted the life imprisonment with twenty years’ imprisonment.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8(1)(2)(3) 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, 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 is incompetent. The file herein is to be closed. Let the applicant seek review of his sentence administratively through the prisons system, the Ministry of Interior and the ` Advisory Committee on the Power of Mercy.
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 THIS 14TH DAY OF JANUARY 2022
W MUSYOKA
JUDGE