[2021] KEHC 1831 (KLR)
The court clarified that the Supreme Court's decision in Muruatetu is limited to mandatory sentences for murder under section 204 of the Penal Code and does not extend to other offences. The applicant's motion for sentence review is not premised on Muruatetu but on the revisionary powers of the High Court under the...
Source-derived case information.
- Citation
- [2021] KEHC 1831 (KLR)
- Parties
- Applicant: Fredrick Luvembe Shivanda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 109 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Directions and Mention for Further Orders
- Outcome
- Mention for directions; no final determination on the merits.
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Revision Jurisdiction, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Luvembe Shivanda
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Directions and Mention for Further Orders
Legal Issues
- 1 Whether the High Court can review the applicant's sentence under the revisionary jurisdiction of the Criminal Procedure Code.
- 2 Whether the Supreme Court's decision in Muruatetu applies to offences other than murder.
Ratio Decidendi
The court clarified that the Supreme Court's decision in Muruatetu is limited to mandatory sentences for murder under section 204 of the Penal Code and does not extend to other offences. The applicant's motion for sentence review is not premised on Muruatetu but on the revisionary powers of the High Court under the Criminal Procedure Code. The court is empowered to interrogate the issues raised under its revisionary jurisdiction, but the substantive question of whether such jurisdiction can be exercised in this case will be determined at the hearing of the motion. The court directed the Deputy Registrar to call for the original records and set the matter for mention for further directions.
Court Disposition
Mention for directions; no final determination on the merits.
Orders
- The Deputy Registrar shall call for the original records relating to Kakamega CMCCRC No. 8 of 2021 and the relevant appeal proceedings and put them together with the instant cause.
- A date for mention of the matter before the Judge shall be assigned thereafter for directions on disposal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 109 OF 2019
FREDRICK LUVEMBE SHIVANDA.................................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 Motion herein is undated, but was filed herein on 9th December 2019, and it is not premised on 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 on the basis of the revision provisions of the Criminal Procedure Code, Cap 75, Laws of Kenya, which the Supreme Court did not address in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). This court can quite properly interrogate the issues raised. However, whether it can do so under the revisionary jurisdiction provided for under the Criminal Procedure Code, is a matter to be canvassed at the hearing of the Motion.
3. In the meantime, let the Deputy Registrar call for the original records relating to Kakamega CMCCRC No. 8 of 2021 and the relevant appeal proceedings, and put them together with the instant cause. A date for mention of the matter before the Judge shall be assigned thereafter for directions on disposal.
4. The Deputy Registrar shall cause copies this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 17th DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE