[2021] KEHC 1393 (KLR)
The court held that the Supreme Court's decision in Muruatetu is confined to mandatory sentences for murder and does not extend to other offences. Since the applicant's offence was undisclosed and not murder, and there was no evidence of a mandatory sentence outside the murder context, the application for sentence...
Source-derived case information.
- Citation
- [2021] KEHC 1393 (KLR)
- Parties
- Applicant: John Wafula Masinde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E078 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application struck out
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Application of Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wafula Masinde
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR applies to the applicant's case for sentence review.
- 2 Whether the applicant is entitled to a belated mitigation of sentence after conviction and sentencing.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu is confined to mandatory sentences for murder and does not extend to other offences. Since the applicant's offence was undisclosed and not murder, and there was no evidence of a mandatory sentence outside the murder context, the application for sentence review could not be entertained on the basis of Muruatetu. Furthermore, the applicant had the opportunity to mitigate at trial and failed to do so, and there was no legal basis for allowing a belated mitigation. The application was therefore struck out and the file ordered closed.
Court Disposition
application struck out
Orders
- The application is struck out.
- The file is ordered closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E078 OF 2021
JOHN WAFULA MASINDE..................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 summons herein, undated, filed herein on 4th June 2018, 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 an undisclosed offence, in Mumias SPMCCRC No. 677 of 2014, and was sentenced to serve fifteen years in prison. It is not clear whether he filed appeal.
3. There is no basis for allowing a belated mitigation of sentence. The applicant had that right before the trial court and he should have exercised the same then. There is no basis for me to revisit this matter through Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the offence for which he was convicted is not even disclosed. I shall strike out his application and order closure of the file.
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.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER 2021
W MUSYOKA
JUDGE