[2021] KEHC 5771 (KLR)
The court held that it lacked constitutional jurisdiction to revisit or interfere with the 40-year sentence imposed by the High Court on appeal, as the sentence was substituted in the exercise of appellate discretion following the Supreme Court's guidance in Muruatetu. The petitioner should have challenged the...
Source-derived case information.
- Citation
- [2021] KEHC 5771 (KLR)
- Parties
- Petitioner: Maxwell Shihunza; Respondent: Republic (Director of Public Prosecutions)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 41 of 2020
- Procedural Posture
- Constitutional Petition / Ruling
- Outcome
- petition dismissed
- Judges
- DN Musyoka
- Legal Topics
- Sentencing Review, Robbery With Violence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxwell Shihunza
Petitioner
Republic (Director of Public Prosecutions)
Respondent
Procedural Posture
Constitutional Petition / Ruling
Legal Issues
- 1 Whether the High Court has constitutional jurisdiction to revisit a sentence imposed by a court of concurrent jurisdiction on appeal.
- 2 Whether the 40-year imprisonment sentence substituted for the death penalty violates the petitioner's constitutional rights.
Ratio Decidendi
The court held that it lacked constitutional jurisdiction to revisit or interfere with the 40-year sentence imposed by the High Court on appeal, as the sentence was substituted in the exercise of appellate discretion following the Supreme Court's guidance in Muruatetu. The petitioner should have challenged the sentence at the Court of Appeal, not through a constitutional petition. There was no constitutional basis for the court to intervene, and the petition was therefore without merit.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CONSTITUTIONAL PETITION NO. 41 OF 2020
MAXWELL SHIHUNZA.......................................................PETITIONER
VERSUS
REPUBLIC..........................DIRECTOR OF PUBLIC PROSECUTIONS
RULING
1. The petitioner herein was convicted, on 14th September 2017, in Kakamega CMCCRC No. of 1600 of 2015, of robbery with violence, contrary to section 295, as read with section 296(2) of the Penal Code, Cap 63, Laws of Kenya, and was sentenced to death. The petitioner filed an appeal at the High Court, Kakamega HCCRA No. 124 of 2017, where the conviction was affirmed, but the sentence of death was set aside, and substituted with imprisonment for 40 years.
2. The instant petition challenges the 40 years’ sentence imposed by the appellate court. The appellate court had discretion to interfere with the death sentence, in the spirit of Francis Karioko Muruatetu & another vs. Republic [2017] eKLR. (Maraga CJ. Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJ)
3. I, therefore, do not see the constitutional basis upon which I can revisit the sentence impose by a court of concurrent jurisdiction on appeal. What the petitioner should have done was to challenge the sentence, imposed upon him by the High Court, at the Court of Appeal.
4. I find no merit in the petition at all. I hereby dismiss the same. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 24th DAY OF June, 2021
W MUSYOKA
JUDGE