[2021] KEHC 3322 (KLR)
The High Court found that the trial court had already considered the Supreme Court's directions in the Muruatetu case when sentencing the applicant to 7 years imprisonment for robbery with violence. The Muruatetu decision was held to apply specifically to mandatory death sentences for murder, not to robbery with...
Source-derived case information.
- Citation
- [2021] KEHC 3322 (KLR)
- Parties
- Applicant: Musembi Mutinda Musau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 15 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Review, Application of Supreme Court Precedent, Robbery With Violence, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musembi Mutinda Musau
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the Supreme Court decision in the Muruatetu case applies to the applicant's sentence for robbery with violence.
- 2 Whether the trial court properly considered the Supreme Court's directions on sentencing when imposing the 7-year sentence.
- 3 Whether the application for revision of sentence constitutes an abuse of court process.
Ratio Decidendi
The High Court found that the trial court had already considered the Supreme Court's directions in the Muruatetu case when sentencing the applicant to 7 years imprisonment for robbery with violence. The Muruatetu decision was held to apply specifically to mandatory death sentences for murder, not to robbery with violence. The court concluded that seeking a revision of sentence on the basis of the Muruatetu case in these circumstances amounted to an abuse of court process, as the applicant's remedy lay in appeal rather than revision. Accordingly, the application for revision was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HC.CR REV. NO. 015 OF 2020
MUSEMBI MUTINDA MUSAU...............................................................APPLICANT
VERSUS
REPUBLIC...............................................................................................RESPONDENT
RULING
1. Before me is a Summons filed on 2nd December 2020 for revision of sentence in which the applicant relies on the Supreme Court reasoning in Petition 15 and 16 of 2015 – the famous Stanley Muruatetu case.
2. The application is supported by a supporting affidavit in which the applicant deposed that he was sentenced to 7 years for robbery.
3. The application has been opposed through a replying affidavit sworn on 12/07/2021 by Ann Penny Gakumu the Senior Principal Prosecuting Counsel, in which it was deponed that the directions of the Supreme Court in the Muruatetu case related to mandatory death sentences for murder cases under section 203 and 204 of the Penal Code, while in the present case the applicant was sentenced to 7 years imprisonment for robbery with violence in Kilungu SPM Criminal Case No. 776 of 2017.
4. It was further deponed that the trial court considered the mitigating factors before sentencing herein.
5. I have considered the application and the opposition to the same by the State. I have also perused the trial court file which was availed to me.
6. I note that in determining the sentence, the trial court stated as follows –
“I note that the two accused persons are very young. Guided by the Supreme Court’s decision on death sentence, I will totally abide by the same. I do therefore, sentence him to serve 7 years imprisonment.”
7. From the above record on sentencing by the trial court therefore, it cannot be said that the trial court did not apply the Muruatetu Court case Supreme Court directions. By coming to this court therefore for review of sentence based on the Muruatetu case, the appellant can rightly be said to be abusing the court process. He can of course appeal to the High Court, but should not come here for review of sentence under the Muruatetu case reasoning.
8. I thus find no merits in the application, and the same is dismissed.
DELIVERED, SIGNED & DATED THIS 5TH DAY OF OCTOBER 2021, IN OPEN COURT AT MAKUENI.
...........................
GEORGE DULU
JUDGE