[2022] KEHC 2920 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, was expressly limited to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2) of the...
Source-derived case information.
- Citation
- [2022] KEHC 2920 (KLR)
- Parties
- Applicant: Isaac Shirande David; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 51 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
- Outcome
- petition and application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Robbery With Violence, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Shirande David
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for robbery with violence under section 296(2) of the Penal Code.
- 2 Does the High Court have jurisdiction to review the applicant's sentence in light of the Supreme Court's clarification in 2021.
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, was expressly limited to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2) of the Penal Code, the Muruatetu decision did not apply to his case. Consequently, the High Court lacked jurisdiction to review or alter the sentence imposed by the trial court. The petition and application for resentencing were therefore incompetent and could not be entertained by the court.
Court Disposition
petition and application dismissed for want of jurisdiction
Orders
- The application and petition are 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
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 51 OF 2019
ISAAC SHIRANDE DAVID................................................................................APPLICANT
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 22nd May 2019, 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 robbery with violence, contrary to section 296(2) of the Penal Code, in Vihiga PMCCRC No. 128 of 2002, and was sentenced to death, which was later commuted to life imprisonment by the President of the Republic of Kenya. He filed appeals in Kakamega HCCRA No. 269 of 2011 and Kisumu CACRA No. 39 of 2013, both of which were dismissed.
3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, as defined in Section 296(2) of 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 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 application and petition are incompetent.
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 14TH DAY OF JANUARY 2022
W MUSYOKA
JUDGE