[2021] KEHC 1750 (KLR)
The High Court lacks jurisdiction to review mandatory sentences for defilement under the Sexual Offences Act based on the Supreme Court's clarification that the Muruatetu decision applies exclusively to mandatory sentences for murder. Since the petitioner's conviction and sentence relate to defilement, the legal...
Source-derived case information.
- Citation
- [2021] KEHC 1750 (KLR)
- Parties
- Petitioner: Isaac Lijodi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 40 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Defilement, Mandatory Sentencing, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Lijodi
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic applies to mandatory sentences for defilement under the Sexual Offences Act.
- 2 Whether the High Court has jurisdiction to review the petitioner.s sentence for defilement based on the Muruatetu decision.
Ratio Decidendi
The High Court lacks jurisdiction to review mandatory sentences for defilement under the Sexual Offences Act based on the Supreme Court's clarification that the Muruatetu decision applies exclusively to mandatory sentences for murder. Since the petitioner's conviction and sentence relate to defilement, the legal basis for review is inapplicable, rendering the petition incompetent and subject to being struck out.
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
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 40 OF 2019
ISAAC LIJODI .................................................................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 17th November 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 sections 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 1916 of 2006, and was sentenced to serve life in prison. He filed appeal in Kakamega HCCRA No. 95 of 2012, where the appellate court affirmed the conviction in Kakamega CMCCRC No. 1916 of 2006, and confirmed the sentence.
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). 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 to cause copies of this ruling to be availed to the petitioner and the office of the Director of Public Prosecutions.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE