[2021] KEHC 1103 (KLR)
The High Court determined that the Supreme Court's decision in Muruatetu, which declared mandatory death sentences for murder unconstitutional, was expressly limited to murder cases and does not extend to other offences such as rape. The applicant, having been convicted and sentenced for rape under section 3(1) of...
Source-derived case information.
- Citation
- [2021] KEHC 1103 (KLR)
- Parties
- Applicant: Moses Amukanga Andanyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 67 of 2020
- 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, Jurisdiction of High Court, Application of Supreme Court Decisions, Sexual Offences, Mandatory Sentences
- 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
Moses Amukanga Andanyi
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 a sentence for rape based on the Supreme Court decision in Muruatetu.
- 2 Whether the Muruatetu decision 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, was expressly limited to murder cases and does not extend to other offences such as rape. The applicant, having been convicted and sentenced for rape under section 3(1) of the Sexual Offences Act, cannot rely on the Muruatetu precedent to seek review of his sentence. Consequently, the High Court has no jurisdiction to entertain the application for sentence review in this context, rendering the application incompetent. Any review of the sentence must be sought administratively within the legislative framework governing the prison service and...
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application 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. 67 OF 2020
MOSES AMUKANGA ANDANYI ....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 Motion herein, dated 18th November 2020, filed herein on 19th November 2020, 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 petitioner seeks review of his sentence, where he had been convicted of rape, contrary to section 3(1) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 50 of 2016, and was sentenced to serve ten years in prison. He was satisfied with the sentence and did not appeal.
3. The offence, the subject of the instant proceedings, is not murder, but rape, as defined in section 3(1) 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. The review that he would like this court to consider ought to be sought administratively, within the legislative framework that governs the prison service in Kenya and imprisonment as a mode of punishment.
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 20TH DAY OF DECEMBER, 2021
W MUSYOKA
JUDGE