[2021] KEHC 2187 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision restricts the application of its 2017 ruling to mandatory sentences for murder only. Since the applicant was convicted of defilement, not murder, the High Court has no jurisdiction to review the sentence on the basis of the...
Source-derived case information.
- Citation
- [2021] KEHC 2187 (KLR)
- Parties
- Applicant: George Ingutia Nandwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 48 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Defilement Offence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ingutia Nandwa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
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?
- 2 Does the High Court have jurisdiction to review the applicant'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 restricts the application of its 2017 ruling to mandatory sentences for murder only. Since the applicant was convicted of defilement, not murder, the High Court has no jurisdiction to review the sentence on the basis of the Muruatetu precedent. Any issues regarding the sentence should have been raised on appeal, not through a fresh petition for review. Consequently, the petition is incompetent and must be 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 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. 48 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, but filed herein on 29th 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, under section 8(1) (2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 85 of 2016, and was sentenced to serve life years in prison. He filed appeal in Kakamega HCCRA No. 119 of 2016, but the appellate court substituted the sentence to twenty years for incest.
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). In any case, the issues raised with regard to sentence could and should have been raised within the appeal for consideration by the appellate court. 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 shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE