[2021] KEHC 1367 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified by subsequent directions, is strictly confined to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement and incest under the...
Source-derived case information.
- Citation
- [2021] KEHC 1367 (KLR)
- Parties
- Appellant: George Ingutia Nandwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 29 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Jurisdiction and Competence of Petition
- Outcome
- petition dismissed for want of jurisdiction and incompetence
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Sentence Review, Sexual Offences, Application of Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ingutia Nandwa
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Jurisdiction and Competence of Petition
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for offences other than murder, specifically defilement and incest under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence in light of the Supreme Court's directions?
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified by subsequent directions, is strictly confined to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement and incest under the Sexual Offences Act, the Muruatetu precedent does not apply. Consequently, the High Court has no jurisdiction to review the sentence imposed by the trial court in this matter. The petition is therefore incompetent and must be dismissed.
Court Disposition
petition dismissed for want of jurisdiction and incompetence
Orders
- The petition is dismissed as incompetent.
- The file herein to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
PETITION NO. 29 OF 2020
GEORGE INGUTIA NANDWA............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 petition herein, undated, filed herein on 23rd September 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, contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006, Laws of Kenya, in Kakamega CMCCRC No. 85 of 2016, and was sentenced to serve life in jail. He filed an appeal at the High Court at Kakamega, being HCCRA No. 119 of 2016, where conviction was substituted for incest, and the sentence was reduced to twenty years imprisonment.
3. The offence, the subject of the instant proceedings, is not murder, but defilement and incest, as defined in 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 petition is incompetent. The file herein to be closed.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner 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