[2021] KEHC 2083 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement under section 8(1)(2) of the Sexual Offences Act,...
Source-derived case information.
- Citation
- [2021] KEHC 2083 (KLR)
- Parties
- Applicant: John Luyi Likhanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 13 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Jurisdiction and Competence of Petition
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Defilement Offences, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Luyi Likhanga
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Jurisdiction and Competence of Petition
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory sentences for defilement under the Sexual Offences Act?.
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence for defilement based on the Muruatetu decision?.
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement under section 8(1)(2) of the Sexual Offences Act, the Muruatetu jurisprudence did not apply to his case. Consequently, the High Court had 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 incompetent and was struck out for want of jurisdiction.
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
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CONSTITUTIONAL PETITION NO. 13 OF 2020
JOHN LUYI LIKHANGA........................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, dated 27th January 2020, but filed on an unknown date, 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 section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 2642 of 2007, and was sentenced to life imprisonment. He filed an appeal in Kakamega HCCRA No. 123 of 2008 and Kisumu CACRA No. 46 of 2016, where the appellate courts affirmed the conviction and sentence.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined under section 8(1)(2) 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, shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPAPRED DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE