[2022] KEHC 2927 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code, as clarified by the Supreme Court in 2021. Since the applicant was...
Source-derived case information.
- Citation
- [2022] KEHC 2927 (KLR)
- Parties
- Applicant: Javan Khaemba Nyongesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 79 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application dismissed; file closed
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Robbery With Violence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Javan Khaemba Nyongesa
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
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 for robbery with violence in light of the Supreme Court's clarification in 2021?.
- 3 Is the applicant entitled to a second review of his sentence under the Muruatetu jurisprudence?.
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, which declared mandatory death sentences unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code, as clarified by the Supreme Court in 2021. Since the applicant was convicted of robbery with violence under section 296(2) of the Penal Code, the Muruatetu decision does not apply to his case. Consequently, the High Court has no jurisdiction to review the applicant's sentence for robbery with violence. Furthermore, the applicant has already benefited from a previous review of his sentence before the Supreme Court's clarification, and is not...
Court Disposition
application dismissed; file closed
Orders
- The application for review is dismissed as incompetent.
- The file is to 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. 79 OF 2019
JAVAN KHAEMBA NYONGESA.........................................................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, undated, was filed herein on 26th October 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 Kakamega CMCCRC No. 1938 of 2011, and was sentenced to death. He filed appeals at the High Court and Court of Appeal, being Kakamega HCCRA No. 260 of 2012 and Kisumu CACRA No. 73 of 2015, and both were dismissed. He, thereafter, brought an application similar to the instant one, in Kakamega HCCR Petition No. 16 of 2018, where his sentence of death was substituted with fifteen years’ imprisonment, on the basis of Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). He is essentially seeking a second review under Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ).
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 is incompetent.
4. In any case, the applicant has already benefitted from Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), before it was clarified inFrancis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others(Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ), that it did not apply to robbery with violence. He should count himself lucky that 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) came after his sentence had been reviewed, for the High Court exercised a jurisdiction that it did not have, according to 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 file herein is to be closed.
5. 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