[2021] KEHC 1181 (KLR)
The court held that the applicant's motion was incompetent as he had already served the sentence and did not appeal within the statutory timelines provided by the Criminal Procedure Code. The Supreme Court's decision in Muruatetu, which allows for review of mandatory sentences, is limited to murder cases and does...
Source-derived case information.
- Citation
- [2021] KEHC 1181 (KLR)
- Parties
- Applicant: Fredrick Anzaya Eyabasi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 108 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Directions and Challenge to Sentence
- Outcome
- application struck out as incompetent
- Judges
- DN Musyoka
- Legal Topics
- Sentencing Review, False Pretences, Criminal Procedure, Out of Time Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Anzaya Eyabasi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Directions and Challenge to Sentence
Legal Issues
- 1 Whether the applicant can challenge a sentence already served outside the statutory appeal timelines.
- 2 Whether the Supreme Court decision in Muruatetu applies to offences other than murder.
Ratio Decidendi
The court held that the applicant's motion was incompetent as he had already served the sentence and did not appeal within the statutory timelines provided by the Criminal Procedure Code. The Supreme Court's decision in Muruatetu, which allows for review of mandatory sentences, is limited to murder cases and does not extend to the offence of obtaining money by false pretences. The applicant's attempt to revisit the sentence on other grounds, including threats of civil action by the complainant, does not provide a legal basis for reopening the matter. Consequently, the application was struck out as incompetent.
Court Disposition
application struck out as incompetent
Orders
- The application is struck out.
- 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
MISCELLANEOUS CRIMINAL APPLICATION NO. 108 OF 2019
FREDRICK ANZAYA EYABASI.....PETITIONER
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 24th August 2021, filed herein on even date, is not founded on Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the applicant does not seek review of sentence. He was convicted in Butere SRMCCRC No. 195 of 2016, of the offence of obtaining money by false pretences, and sentenced to serve three years’ imprisonment. He has served the sentence, and he brings the current application to challenge the sentence, not along the lines of Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), but on other grounds. If he was aggrieved with sentence, he should have appealed against it, at the High Court, within the timelines given under the Criminal Procedure Code, Cap 75, Laws of Kenya. The issue cannot be revisited now, just because the complainant is threatening to sue to recover damages, or the money he lost to him, by the false pretenses.
3. The matter is incompetent and I hereby strike it out. File shall be closed. Deputy Registrar to avail copy of this ruling on the applicant and the office of Director of Public Prosecutions, Kakamega.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER, 2021
W MUSYOKA
JUDGE