[2021] KEHC 1179 (KLR)
The High Court determined that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences for murder unconstitutional, is expressly limited to murder cases under section 204 of the Penal Code. The applicant's conviction and sentence for attempted defilement under the Sexual Offences Act do...
Source-derived case information.
- Citation
- [2021] KEHC 1179 (KLR)
- Parties
- Applicant: Joseph Waswa Wambutsi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 54 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Jurisdiction of High Court, Sexual Offences, Applicability of Muruatetu, Attempted Defilement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Waswa Wambutsi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence for attempted defilement based on the Supreme Court decision in Muruatetu.
- 2 Whether the Muruatetu decision on mandatory sentences applies to offences other than murder.
Ratio Decidendi
The High Court determined that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences for murder unconstitutional, is expressly limited to murder cases under section 204 of the Penal Code. The applicant's conviction and sentence for attempted defilement under the Sexual Offences Act do not fall within the ambit of the Muruatetu decision. Consequently, the High Court has no jurisdiction to review the sentence imposed by the trial court for attempted defilement on the basis of Muruatetu. The application for sentence review is therefore incompetent and must be dismissed.
Court Disposition
application dismissed for want of jurisdiction
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
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 54 OF 2019
JOSEPH WASWA WAMBUTSI..................................................................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 Motion herein, dated 5th August 2019, filed herein on 6th August 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 attempted defilement, contrary to section 9(1)(2) of the Sexual Offences Act No. 3 of 2006, Laws of Kenya, in Mumias SPMCCRC No. 54 of 2019, and was sentenced to twenty in jail. He filed an appeal at the High Court at Kakamega, being HCCRA No. 156 of 2011, whose outcome is not disclosed.
3. The offence, the subject of the instant proceedings, is not murder, but attempted defilement, as defined in 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 Motion is incompetent. The file herein to be closed.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the applicant 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