[2022] KEHC 2914 (KLR)
The High Court lacks jurisdiction to review the applicant's sentence for arson based on the Supreme Court's clarification that the Muruatetu decision applies exclusively to mandatory sentences for murder. The application for sentence review is therefore incompetent. Any further review or reduction of sentence must...
Source-derived case information.
- Citation
- [2022] KEHC 2914 (KLR)
- Parties
- Applicant: Geofrey Kibet Musonik; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 104 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction; file closed
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Jurisdiction of High Court, Application of Muruatetu, Arson Offences, Administrative Remedies, Presidential Clemency
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geofrey Kibet Musonik
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory sentences for offences other than murder, specifically arson.
- 2 Does the High Court have jurisdiction to review the applicant's sentence for arson based on the Muruatetu decision.
- 3 Are there alternative remedies available for sentence review outside the court process.
Ratio Decidendi
The High Court lacks jurisdiction to review the applicant's sentence for arson based on the Supreme Court's clarification that the Muruatetu decision applies exclusively to mandatory sentences for murder. The application for sentence review is therefore incompetent. Any further review or reduction of sentence must be pursued through administrative mechanisms such as parole, remission under the Prisons Act, or presidential clemency under Article 133 of the Constitution. The court's role in sentencing is limited to the statutory framework provided by the Criminal Procedure Code and does not extend to post-conviction administrative reviews unless there is an allegation of abuse of process by...
Court Disposition
application dismissed for want of jurisdiction; file closed
Orders
- The application for review of sentence is dismissed as incompetent.
- The file herein is to be closed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 104 OF 2019
GEOFREY KIBET MUSONIK......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, dated 8th December 2021, filed herein on even date, 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 arson, contrary to section 332 of the Penal Code, by the Tamu Senior Resident Magistrate’s Court, and was sentenced to serve twelve years in prison. He did not file appeal. He seeks review on grounds that he has reformed.
3. The offence, the subject of the instant proceedings, is not murder, but arson, as defined in section 332 of the Penal Code, 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.
4. The sort of review that the applicant seeks is not available through court intervention, but rather through administrative means. Under the Prisons Act, Cap 90, Laws of Kenya, there is provision for parole or remission. The Constitution also provides for exercise of mercy by way of Presidential clemency, under Article 133 of the Constitution. Primarily, a court can only exercise jurisdiction, with respect to sentencing, within the confines of the Criminal Procedure Code, Cap 75, Laws of Kenya, upon conviction and through revision, and appeal. It can also deal with sentencing upon a constitutional petition, where it is established that there was some constitutional violation. However, once a person has been properly convicted and sentenced, whether remission or parole or review of sentence should be done, outside a sentencing hearing, appeal or through a proper constitutional petition, are administrative matters that ought to be dealt with through the Ministry of Interior, which is responsible for prisons and correctional institutions. The court can only intervene where there is allegation of abuse of process by the Ministry or the relevant agencies within the Ministry. The court intervenes only where there is a problem with the way the administrative organs responsible for correction services are executing their mandate with respect to individual convicts. The mere fact that the sentence was imposed by a court of law does not mean that the court will have a role thereafter to review sentence midway.
5. 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