[2022] KEHC 2939 (KLR)
The court clarified that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences unconstitutional, is limited to murder cases under section 204 of the Penal Code and does not extend to other offences such as defilement under the Sexual Offences Act. Since the applicant seeks leave to file...
Source-derived case information.
- Citation
- [2022] KEHC 2939 (KLR)
- Parties
- Applicant: Isaiah Okinda Nyangweso alias Harambee; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 70 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Directions on Application for Leave to Appeal Out of Time
- Outcome
- Application to be listed for disposal before a judge; directions issued.
- Judges
- DN Musyoka
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Sexual Offences Act, Sentence Review Scope
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Okinda Nyangweso alias Harambee
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Directions on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to file an appeal out of time.
- 2 Whether the Supreme Court decision in Muruatetu applies to offences other than murder.
Ratio Decidendi
The court clarified that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences unconstitutional, is limited to murder cases under section 204 of the Penal Code and does not extend to other offences such as defilement under the Sexual Offences Act. Since the applicant seeks leave to file an appeal out of time and not sentence review under Muruatetu, the application should be listed for disposal before a judge. The Deputy Registrar is directed to facilitate this process and ensure all parties are served with the ruling.
Court Disposition
Application to be listed for disposal before a judge; directions issued.
Orders
- The Deputy Registrar shall list the application for leave to file appeal out of time before a judge for disposal.
- The Deputy Registrar shall avail copies of this ruling to the applicant and the office of Director of Public Prosecutions, Kakamega.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 70 OF 2019
ISAIAH OKINDA NYANGWESO alias HARAMBEE...................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 application herein, dated 23rd July 2019, filed herein on 12th September 2019, is not 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 does not seek review of his sentence, where he had been convicted of defilement, contrary to section 8(1)(4) of the Sexual Offences Act, No. 3 of 2006, in Butere SRMCCRC No. 376 of 2012, but seeks leave to file appeal out of time.
3. The Deputy Registrar should cause the matter to be listed before the Judge, for disposal of the application for leave to file appeal out of time. 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 14TH DAY OF JANUARY 2022
W MUSYOKA
JUDGE