[2021] KEHC 2223 (KLR)
The High Court has no jurisdiction to review the applicant's sentence for robbery with violence under section 296(2) of the Penal Code based on the Muruatetu decision, as the Supreme Court has clarified that the principles in Muruatetu apply exclusively to mandatory sentences for murder under section 204 of the...
Source-derived case information.
- Citation
- [2021] KEHC 2223 (KLR)
- Parties
- Applicant: Kephar Kavata Ombima; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E012 of 2021
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Sentence Review, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kephar Kavata Ombima
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Application for Sentence Review
Legal Issues
- 1 Does the High Court have jurisdiction to review a sentence for robbery with violence based on the Supreme Court decision in Muruatetu?
- 2 Does the Muruatetu decision on mandatory sentences apply to offences other than murder, specifically robbery with violence?
Ratio Decidendi
The High Court has no jurisdiction to review the applicant's sentence for robbery with violence under section 296(2) of the Penal Code based on the Muruatetu decision, as the Supreme Court has clarified that the principles in Muruatetu apply exclusively to mandatory sentences for murder under section 204 of the Penal Code. Since the offence in question is not murder but robbery with violence, the application for sentence review is incompetent and must be struck out.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent.
- The file shall be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. E012 OF 2021
KEPHAR KAVATA OMBIMA.........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 petition herein, dated 28th October 2020, and filed herein on even date, 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 applicant seeks review of his sentence, where he had been convicted of robbery with violence, under section 296(2) of the Penal Code, in Vihiga PMCCRC No. 489 of 2010, and was sentenced to death. He filed an appeal in Kakamega HCCRA No. 1196 of 2012, where the appellate court affirmed the conviction. His appeal in Kisumu CACRA No. 54 of 2020 is still pending.
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, based on the decision 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 copy this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE