[2022] KEHC 10471 (KLR)
The High Court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to murder cases only. As the petitioner was convicted of robbery with violence, the Muruatetu jurisprudence did not apply to his case. Consequently, the High Court...
Source-derived case information.
- Citation
- [2022] KEHC 10471 (KLR)
- Parties
- Appellant: Ali Bakari Musindalo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 33 of 2018
- Procedural Posture
- Criminal Petition / Ruling on Petition for Sentence Review
- Outcome
- petition struck out
- Judges
- WM Musyoka
- Legal Topics
- Mandatory Sentencing, Sentence 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
Ali Bakari Musindalo
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Petition for Sentence Review
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to mandatory sentences for robbery with violence.
- 2 Whether the High Court has jurisdiction to review the petitioner.s sentence based on the Muruatetu decision.
Ratio Decidendi
The High Court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to murder cases only. As the petitioner was convicted of robbery with violence, the Muruatetu jurisprudence did not apply to his case. Consequently, the High Court had no discretion or jurisdiction to review or revise the mandatory sentence imposed under section 296(2) of the Penal Code. The petition was therefore incompetent and was struck out.
Court Disposition
petition struck out
Orders
- The petition dated 5th July 2018 is struck out.
- Copies of the proceedings to be availed to Ali Bakari Musindalo and the Director of Public Prosecutions.
Full Case Text
Judgment text and source record
20 paragraphs
Musindalo v Republic (Criminal Petition 33 of 2018) [2022] KEHC 10471 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10471 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Petition 33 of 2018
WM Musyoka, J
June 24, 2022
Between
Ali Bakari Musindalo
Petitioner
and
Republic
Respondent
Ruling
1. The petition dated 5th July 2018, seeks review of sentence on the basis of Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), where the court appeared to lay down a general principle that all mandatory sentences were unconstitutional, and to allow trial and appellate courts discretion to revisit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.
2. The petitioner had been convicted of robbery with violence, contrary to section 296(2) of the Penal Code, Cap 63, Laws of Kenya, in Kakamega CMCCRC No. 3512 of 2014. He lodged an appeal in Kakamega HCCRA No. 89 of 2016, whose fate he does not disclose.
3. The Supreme Court has clarified, inFrancis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), that its decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) was of application only in murder cases, and not any other.
4. The offence that the petitioner was convicted of was robbery with violence, as defined in the Penal Code, Cap 63, Laws of Kenya. The decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) is, therefore, of no application, and I have no discretion or jurisdiction to do that which the petitioner is inviting me to do.
5. The petition, dated 5th July 2018, is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to Ali Bakari Musindalo and to the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24th DAY OF June 2022. WM MUSYOKAJUDGEErick Zalo, Court Assistant.Ali Bakari Musindalo, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.