[2022] KEHC 2940 (KLR)
The Supreme Court's clarification in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] restricts the application of the Muruatetu decision to mandatory sentences for murder under section 204 of the Penal Code. The applicant, having been convicted of defilement under...
Source-derived case information.
- Citation
- [2022] KEHC 2940 (KLR)
- Parties
- Applicant: Joseph Mulama Matemwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E094 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction and incompetence
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Defilement Offence, Applicability of Muruatetu, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mulama Matemwa
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 apply to mandatory sentences for offences other than murder, specifically defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence in light of the Supreme Court's clarification in Muruatetu (2021)?
- 3 Is the applicant entitled to a further review of sentence based on time spent in custody?
Ratio Decidendi
The Supreme Court's clarification in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] restricts the application of the Muruatetu decision to mandatory sentences for murder under section 204 of the Penal Code. The applicant, having been convicted of defilement under section 8(1)(3) of the Sexual Offences Act, cannot rely on Muruatetu to seek review of his sentence. The High Court, therefore, lacks jurisdiction to entertain the application for sentence review in this context. Furthermore, the applicant's sentence has already been reviewed on appeal, and any issues regarding the period spent in custody should have been raised at that stage....
Court Disposition
application dismissed for want of jurisdiction and incompetence
Orders
- The application for review of sentence is dismissed as incompetent.
- The file is to be closed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E094 OF 2021
JOSEPH MULAMA MATEMWA....................................................................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, dated 8th December 2021, filed herein on even date, 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 defilement, contrary to section 8(1)(3) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 108 of 2016, and was sentenced to serve fifteen years in prison. He filed an appeal in Kakamega HCCRA No. 53 of 2018, where the conviction was upheld, but the sentence was reduced to eight years, based on 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 defilement, as defined in section 8(1)(3) 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, 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. The file herein is to be closed.
4. In any case, the original sentence was reviewed by the court on the basis of Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), and what the applicant is doing is to obtain another review based also on Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). The issue he raises, that the period spent in custody should be reckoned in the sentence, is something that he should have agitated on appeal. He is practically seeking a second bite at the sherry.
5. The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 14TH DAY OF JANUARY 2022
W MUSYOKA
JUDGE