[2021] KEHC 1446 (KLR)
The court held that, following the Supreme Court's clarification in the 2021 Muruatetu decision, the jurisprudence on the unconstitutionality of mandatory sentences is confined to murder cases under section 204 of the Penal Code. As such, the present petition, which does not relate to a murder conviction, cannot...
Source-derived case information.
- Citation
- [2021] KEHC 1446 (KLR)
- Parties
- Applicant: Josam Wesonga Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 20 of 2020
- Procedural Posture
- Criminal Petition / Directions for Finalization After Supreme Court Clarification
- Outcome
- Matter referred for finalization before the judge previously seized of it.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Murder Offences, Supreme Court Guidance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josam Wesonga Makokha
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Directions for Finalization After Supreme Court Clarification
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to mandatory sentences outside murder cases.
- 2 Whether the current petition, not being a murder case, falls within the scope of the Muruatetu jurisprudence.
Ratio Decidendi
The court held that, following the Supreme Court's clarification in the 2021 Muruatetu decision, the jurisprudence on the unconstitutionality of mandatory sentences is confined to murder cases under section 204 of the Penal Code. As such, the present petition, which does not relate to a murder conviction, cannot benefit from the Muruatetu principles. The matter, having been substantially handled by another judge and being at the submissions stage, should be placed before the same judge for finalization.
Court Disposition
Matter referred for finalization before the judge previously seized of it.
Orders
- The matter shall be placed before Hon. Lady Justice Farah SM Amin for finalization.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. 20 OF 2020
JOSAM WESONGA MAKOKHA.......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. I note that the matter has been handled substantially by Hon. Lady Justice Farah SM Amin, and is at the stage of written submissions. Let the matter be placed before Hon. Lady Justice Farah SM Amin for finalization.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 15thDAY OF NOVEMBER 2021
W MUSYOKA
JUDGE