[2022] KEHC 2934 (KLR)
The court held that the Supreme Court’s decision in Muruatetu applies strictly to cases where a mandatory death sentence for murder was imposed. The petitioner failed to provide evidence that he was sentenced to death, instead referring to a life sentence. Since the Muruatetu jurisprudence does not extend to life...
Source-derived case information.
- Citation
- [2022] KEHC 2934 (KLR)
- Parties
- Appellant: Harun Mambili Lubembe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 7 of 2018
- Procedural Posture
- Criminal Petition / Ruling on Sentence Review Application
- Outcome
- petition dismissed
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Murder, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Harun Mambili Lubembe
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR applies to the petitioner’s sentence for murder.
- 2 Whether the High Court has jurisdiction to review the petitioner’s sentence in light of the Muruatetu decisions.
- 3 Whether the petitioner was sentenced to death or life imprisonment and the implications for sentence review.
Ratio Decidendi
The court held that the Supreme Court’s decision in Muruatetu applies strictly to cases where a mandatory death sentence for murder was imposed. The petitioner failed to provide evidence that he was sentenced to death, instead referring to a life sentence. Since the Muruatetu jurisprudence does not extend to life sentences or discretionary sentences, and there is no material before the court to show that the petitioner’s sentence falls within the scope of Muruatetu, the petition for sentence review is incompetent and must be dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed as incompetent.
- The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 7 OF 2018
HARUN MAMBILI LUBEMBE.........................................................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, was filed herein on 2nd May 2018, 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 murder, contrary to section 203, as read with section 204, of the Penal Code, in Kakamega HCCRC No. 51 of 1996, and was sentenced to death. He appealed, in Kisumu CACRA No. 103 of 2000, the appeal was dismissed and the sentence upheld. He claims to be serving a life sentence, but it is not clear whether that was what he was convicted of, as he has not attached any of the judgments to his petition.
3. The offence, the subject of the instant proceedings is murder, as defined in 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 therefore apply to it. As a consequence, the High Court has 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).
4. However, the decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), is limited to the mandatory sentence of death. I have no material before me which suggests that that was the sentence that was imposed by the trial court and confirmed by the appellate court. He talks of life imprisonment, and not the death sentence. Consequently, I do not see the basis upon which Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) can be applied in the matter before me for review purposes. The petition is, therefore, incompetent and is hereby dismissed.
5. The Deputy Registrar shall cause copies of this ruling to be availed to the petitioners and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 14TH DAY OF JANUARY, 2022
W MUSYOKA
JUDGE