[2021] KEHC 2230 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, is expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The petitioner's conviction and sentence for robbery with violence under section 296(2)...
Source-derived case information.
- Citation
- [2021] KEHC 2230 (KLR)
- Parties
- Applicant: Ismael Lumoto Lukasio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E027 of 2021
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Competence of Petition
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Robbery With Violence, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ismael Lumoto Lukasio
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Competence of Petition
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR on mandatory sentences apply to robbery with violence convictions under section 296(2) of the Penal Code.
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence for robbery with violence based on the Muruatetu decision.
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, is expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The petitioner's conviction and sentence for robbery with violence under section 296(2) of the Penal Code do not fall within the ambit of the Muruatetu jurisprudence. Consequently, the High Court has no jurisdiction to review or interfere with the sentence imposed by the trial court on the basis of the Muruatetu decision. The petition was therefore struck out as incompetent.
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. E027 OF 2021
ISMAEL LUMOTO LUKASIO.............................................................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 29th October 2021, 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 robbery with violence, under section 296(2) of the Penal Code, in Mumias SRMCCRC No. 648 of 2004, and was sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. He filed appeal in Kakamega HCCRA No. 42 of 2005, which the appellate court 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, 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, shall cause copy 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 12TH DAY OF NOVEMBER, 2021
W MUSYOKA
JUDGE