[2020] KEHC 4844 (KLR)
The court held that the offence of grievous harm under section 344 of the Penal Code does not carry a mandatory sentence but only a maximum sentence of life imprisonment. The applicant's sentence of 35 years was a discretionary sentence imposed by the trial court, and this sentence was upheld by both the High Court...
Source-derived case information.
- Citation
- [2020] KEHC 4844 (KLR)
- Parties
- Applicant: Musyimi Ndava; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 11 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
- Outcome
- application struck out
- Judges
- CM Kariuki
- Legal Topics
- Sentencing Discretion, Grievous Harm, Application of Muruatetu, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musyimi Ndava
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the applicant is entitled to re-sentencing under the Supreme Court decision in Muruatetu.
- 2 Whether the High Court has jurisdiction to review a discretionary sentence already upheld on appeal.
Ratio Decidendi
The court held that the offence of grievous harm under section 344 of the Penal Code does not carry a mandatory sentence but only a maximum sentence of life imprisonment. The applicant's sentence of 35 years was a discretionary sentence imposed by the trial court, and this sentence was upheld by both the High Court and the Court of Appeal. The Supreme Court decision in Muruatetu, which declared mandatory sentences unconstitutional, does not apply to discretionary sentences such as the one imposed on the applicant. Therefore, the High Court lacks jurisdiction to entertain the application for re-sentencing, and the application must be struck out.
Court Disposition
application struck out
Orders
- The application herein is struck out.
- The file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPLICATION NO. 11 OF 2020
MUSYIMI NDAVA.............................................................................APPLICANT
VERSUS
REPUBLIC....................................................................................RESPONDENT
RULING
1. The Applicant was convicted and sentenced to serve 35 years imprisonment for causing grievous harm in Mwingi SRMCRC No. 425 of 2012 on 21/5/2013.
2. He was aggrieved with the conviction and sentence aforesaid and thus lodged HCCRA No. 68 of 2013 at Garissa and the Court of Appeal and rejected same.
3. Now he has approached this court for re-sentencing relying on Supreme Court case of Muruatetu which held that mandatory aspect of a sentence is unconstitutional. The offence attracts a term of life sentence under section 344 of the Penal Code. However, after mitigation the trial court awarded Applicant 35 years’ imprisonment.
4. The High Court in appeal also noted that maximum sentence was a life sentence and upheld the sentence after considering migrations and circumstances of the case and especially the seriousness of the injuries inflicted on the victim.
5. The Court of Appeal also in a second appeal declined to disturb the sentence imposed thus closing all avenues of challenging the same and bring the matter into a finality.
6. This is not the type of the case which lies within the purview of the Supreme Court case of Muruatetu Supreme Court Petition No. 15 of 2015 which held that mandatory aspect of death sentence is unconstitutional which has now been extended by the superior courts to all mandatory aspects of all sentences.
7. Grievous harm has no mandatory sentence but only a maximum sentence which is life. The 35 years’ imprisonment is a discretionary sentence which was meted out by the trial court and upheld 2nd court (High court) and finally by the Court of appeal.
8. Therefore, this court has no jurisdiction to question such a sentence under any law including Article 165 of the Constitution of Kenya.
9. Thus, this court makes the following orders: -
(i) The application herein is struck out and file closed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 23RD DAY OF JUNE, 2020.
.....................
C. KARIUKI
JUDGE