[2021] KEHC 2078 (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 by the Supreme Court in its 2021 clarification to apply only to murder cases under section 204 of the Penal Code. Since...
Source-derived case information.
- Citation
- [2021] KEHC 2078 (KLR)
- Parties
- Applicant: John Wandati Wamalwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 80 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Robbery With Violence, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wandati Wamalwa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR on mandatory sentences apply to offences other than murder, specifically 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 directions?
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 by the Supreme Court in its 2021 clarification to apply only to murder cases under section 204 of the Penal Code. 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 lacks jurisdiction to review the sentence imposed by the trial court for robbery with violence. The application for sentence review is therefore incompetent and must be struck out.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application for sentence review is struck out as incompetent.
- The file is 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. 80 OF 2019
JOHN WANDATI WAMALWA.............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 chamber summons herein is undated, but was filed herein on 30th September 2019, 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 Bungoma CMCCRC No. 1578 of 1994. He filed appeal in Kakamega HCCRA No. 255 of 1995 and Nairobi CACRA No. 49 of 1998, both of which were dismissed by the appellate courts.
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, going by 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). Since there is no jurisdiction on my part to entertain the application, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar shall cause copies this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 15TH DAY OF NOVEMBER. 2021
W MUSYOKA
JUDGE