[2021] KEHC 2062 (KLR)
The court found that the applicant's motion for sentence review was incompetent due to lack of clarity regarding the offence for which he was convicted and sentenced, and the absence of supporting documentation from the relevant criminal and appellate files. Furthermore, the Supreme Court's clarification in the 2021...
Source-derived case information.
- Citation
- [2021] KEHC 2062 (KLR)
- Parties
- Applicant: Henry Likhanga Lumiti; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 83 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Motion for Sentence Review
- Outcome
- motion struck out as incompetent; file closed
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Sentence Review, Jurisdiction, Appellate Procedure
- 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
Henry Likhanga Lumiti
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Petition / Ruling on Motion for Sentence Review
Legal Issues
- 1 Whether the court has jurisdiction to review the applicant's sentence under the Muruatetu jurisprudence in light of the Supreme Court's clarification limiting its application to murder cases.
- 2 Whether the applicant's motion for sentence review is competent given the lack of clarity on the offence and the status of the appeal.
Ratio Decidendi
The court found that the applicant's motion for sentence review was incompetent due to lack of clarity regarding the offence for which he was convicted and sentenced, and the absence of supporting documentation from the relevant criminal and appellate files. Furthermore, the Supreme Court's clarification in the 2021 Muruatetu decision restricts the application of its 2017 precedent to mandatory sentences for murder only, not to other offences such as robbery with violence. The court also noted that the applicant's appeal may still be pending, making the motion for review premature and more appropriately addressed within the appellate process. Consequently, the court struck out the motion...
Court Disposition
motion struck out as incompetent; file closed
Orders
- The Motion is struck out for incompetence.
- The file shall be closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 83 OF 2019
HENRY LIKHANGA LUMITI........................................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS...........................................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, undated, but filed herein on 22nd December 2019, 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 in Kakamega HCCRC No. 34 of 2006. He lodged appeal in Kisumu CACRA No. 110 of 2011, but he has not indicated whether the same has determined or not. It is not clear what the offence for which he was convicted and sentenced to death was. There are two affidavits on record, one says it was murder, while the other identifies the offence as robbery with violence. He has not attached any documents from Kakamega HCCRC No. 34 of 2006 and Kisumu CACRA No. 110 of 2011.
3. The pleadings in this matter are convoluted, and in the absence of clarity, it will be impossible for the court to determine whether it has any jurisdiction to review the matter under Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), in view of 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), or not. In any case the appeal in Kisumu CACRA No. 110 of 2011 could still be pending, and the review sought can quite properly be handled within the appeal. I shall strike out the Motion, for it is incompetent. The file shall be closed.
4. 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 15TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE