[2021] KEHC 1013 (KLR)
The court held that the application before it was not based on the Muruatetu decision, as it did not seek review of a mandatory sentence but rather leave to appeal out of time. Leave had already been granted on 23rd October 2018, rendering the application spent. In light of this, and the Supreme Court's...
Source-derived case information.
- Citation
- [2021] KEHC 1013 (KLR)
- Parties
- Applicant: Mourice Shivaji; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 48 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Closure After Leave to Appeal Out of Time Granted
- Outcome
- Application spent; file ordered closed.
- Judges
- DN Musyoka
- Legal Topics
- Leave to Appeal Out of Time, Sentence Review, Mandatory Sentences, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mourice Shivaji
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Closure After Leave to Appeal Out of Time Granted
Legal Issues
- 1 Whether the application for leave to appeal out of time was properly before the court.
- 2 Whether the Supreme Court decision in Muruatetu applies to the present application.
- 3 Whether the matter should be closed after leave was granted and the application spent.
Ratio Decidendi
The court held that the application before it was not based on the Muruatetu decision, as it did not seek review of a mandatory sentence but rather leave to appeal out of time. Leave had already been granted on 23rd October 2018, rendering the application spent. In light of this, and the Supreme Court's clarification that Muruatetu applies only to murder cases, the court found no further issue to determine and ordered the file closed forthwith.
Court Disposition
Application spent; file ordered closed.
Orders
- The file is to be closed forthwith.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 48 OF 2018
MOURICE SHIVAJI.................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, undated, filed herein on 21st June 2018, is not founded on Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the petitioner does seeks review of his sentence, but leave to file appeal out of time. Leave was granted on 23rd October 2018. Matter was spent. The file should have been closed then. It should be closed now, forthwith.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER 2021
W MUSYOKA
JUDGE