[2021] KEHC 2941 (KLR)
The court held that the Supreme Court's decision in Muruatetu, as clarified on 6th July 2021, does not apply to offences of robbery with violence under section 296(2) of the Penal Code, but is limited to murder offences. The court further found that section 333(2) of the Criminal Procedure Code, which requires the...
Source-derived case information.
- Citation
- [2021] KEHC 2941 (KLR)
- Parties
- Applicant: Mohamed Karanja; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 458 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Robbery With Violence, Application of Muruatetu, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Karanja
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to robbery with violence convictions for purposes of sentence review.
- 2 Whether the High Court has jurisdiction to review sentence under section 333(2) of the Criminal Procedure Code in the absence of an appeal on sentence.
- 3 Whether the period spent in custody prior to sentencing should be factored into the applicant's sentence.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu, as clarified on 6th July 2021, does not apply to offences of robbery with violence under section 296(2) of the Penal Code, but is limited to murder offences. The court further found that section 333(2) of the Criminal Procedure Code, which requires the sentencing court to consider the period spent in custody, does not empower the appellate court to review sentence on that ground in the absence of an appeal on sentence. The High Court's revisionary powers under section 362 of the Criminal Procedure Code do not extend to reviewing sentences for non-compliance with section 333(2) unless there is an appeal on sentence....
Court Disposition
application dismissed
Orders
- All applications by the applicant are dismissed in their entirety.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS CRIMINAL DIVISION MISC CR APPL NO 458 OF 2019
MOHAMED KARANJA .....APPLICANT
VERSUS
REPUBLIC .....................RESPONDENT
RULING
COURT
1. By a chamber summons application filed in court on 22nd February 2021, the applicant is seeking for orders that, the court takes into account any clemency factor beforehand, and have him reprieved.” Further, the court may factor his period in custody of four years from 15th August 2015 to May 2019 into account, while reviewing sentence. He relies on the provisions of section; 333 (2) of the Criminal Procedure Code. Finally, the applicant prays that, the decision in the case of Muruatetu be considered and the sentence be reviewed accordingly. He mitigates by stating that,the court should consider his health status, age and the fact that, he is a first offender. The application is supported by an affidavit sworn by the applicant, wherein he avers that, he was the accused in Criminal Case Number 4028 of 2015, charged with the offence of robbery with violence contrary to section 296(2) of Penal Code. He was tried, convicted and sentenced to ten (10) years imprisonment. He further avers that, there is no research or instrument that shows, that an inmate cannot reform. He has a clean record from penance system which is adequate personal mitigation.
2. However, the application was opposed by the Respondent based on grounds of appeal dated 18th May 2021 to the effect that, it lacks merit, is not arguable and has no overwhelming chances of success. That the appellant was properly convicted upon the prosecution discharging its burden of proof.
3. The appellant was positively identified during the trial, and that his defence was duly considered.
4. Having considered arguments advanced by both parties, I first of all wish to clear what may appear to be a confusion as to the matter before the court. This is informed by the fact that, when the applicant filed the chamber summons application dated 3rd October 2019, he also filed a petition of appeal supported by grounds thereof. Apparently, before the same were dealt with, the applicant filed another Chamber summons application on 22nd February 2021. As though the applicant was on a spree of filing applications, another application was forwarded to the court by the officer – in –charge Government of Kenya Prison Kitengela and filed in court on 3rd August 2021. That application is described as a notice of motion application and accompanied with an affidavit and submissions. It is therefore not clear whichapplication is for consideration and determination. Secondly, it does not explain why the Respondent filed a response to the appeal. However, this matter cannot be a subject of appeal as the appeal has never been admitted to hearing. Be that as it were, having considered the entire matter in the light of the materials before the court, I find that the application(s) is or are not tenable for the following reasons:
a. The Supreme Court decision of Muruatetu (see 2017 Eklr) is no longer applicable in relation to the charge of robbery with violence contrary to section 296(2) of Penal Code, Pursuant to the Supreme Court of Kenyadecision in the same case dated 6th July 2021, which clarified that re-sentencing applies in relation to sentence in murder offences only.
b. The provisions of section 333(2) of Criminal Procedure Code can only be considered by the Court meting outthe sentence not the appellate Court where there is no appeal on sentence.
c. The powers of the appellate court (HC0 under Section 362 of CPC do not empower it to review sent4ence on the basis of non-compliance with the provisions of Section 333(2) of Criminal Procedure Code.
5. The upshot is that, I find no merit in the subject application(s) herein and I dismiss all of them (on consolidated basis) in their entirety.
DATED, DELIVERED VIRTUALLY AND SIGNED THIS 5THDAY OF OCTOBER, 2021
GRACE L. NZIOKA
JUDGE
5th October 2021
In the presence of;
Ms Chege for the Respondent
Applicant present in person
Edwin Ombuna – Court Assistant