[2021] KEHC 2231 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the applicability of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement under the Sexual Offences Act, the Muruatetu...
Source-derived case information.
- Citation
- [2021] KEHC 2231 (KLR)
- Parties
- Appellant: Fredrick Kibienda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Election Petition 19 of 2020
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Defilement, Mandatory Sentencing, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kibienda
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
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 petitioner.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 applicability of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement under the Sexual Offences Act, the Muruatetu jurisprudence does not apply. Consequently, the High Court lacks jurisdiction to review or alter the sentence imposed by the trial court on the basis of the Muruatetu decision. The petition was therefore incompetent and was struck out for want of jurisdiction.
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out as incompetent.
- The file is closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 19 OF 2020
FREDRICK KIBIENDA ...PETITIONER
VERSUS
REPUBLIC.......................RESPONDENT
RULING
1. This matter was placed before me for the purpose of giving directions, in view of the resent 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, undated, but filed herein on 28th July 2020, 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, under sections 8(1) and (3) of the Sexual Offences Act, No. 3 of 2006, in Vihiga PMCCRC No. 267 of 2012, and was sentenced to serve life in prison. He filed appeal in Kakamega HCCRA No. 14B of 2014, where the appellate court affirmed the conviction, and confirmed the sentence.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8(1)(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, 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 petition, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar to cause copies of this ruling to be availed to the petitioner and the office of the Director of Public Prosecutions.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER,2021
W MUSYOKA
JUDGE