[2022] KEHC 10470 (KLR)
The High Court struck out the petition for re-sentencing on the basis that the Supreme Court's decision in Muruatetu [2017] eKLR, as clarified in 2021, applies only to murder cases and not to other offences such as robbery with violence. The court held it had no jurisdiction or discretion to re-sentence the...
Source-derived case information.
- Citation
- [2022] KEHC 10470 (KLR)
- Parties
- Applicant: Samson Mwenge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 37 of 2020
- Procedural Posture
- Criminal Petition / Ruling on Re Sentencing Petition
- Outcome
- petition struck out as incompetent
- Judges
- WM Musyoka
- Legal Topics
- Mandatory Sentencing, Resentencing Petitions, Robbery With Violence, Presidential Prerogative of Mercy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Mwenge
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Re Sentencing Petition
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence a petitioner convicted of robbery with violence following the Supreme Court decision in Muruatetu.
- 2 Whether the principle in Francis Karioko Muruatetu & another v Republic [2017] eKLR applies to offences other than murder.
- 3 Whether the petitioner's sentence can be reviewed after the President has commuted the death penalty to life imprisonment.
Ratio Decidendi
The High Court struck out the petition for re-sentencing on the basis that the Supreme Court's decision in Muruatetu [2017] eKLR, as clarified in 2021, applies only to murder cases and not to other offences such as robbery with violence. The court held it had no jurisdiction or discretion to re-sentence the petitioner, whose death sentence had already been commuted to life imprisonment by the President under the prerogative of mercy. The petition was therefore incompetent and could not be entertained.
Court Disposition
petition struck out as incompetent
Orders
- The petition filed on 9th October 2020 is struck out.
- Copies of the proceedings to be availed to Samson Mwenge and the Office of Director of Public Prosecutions Kakamega.
Full Case Text
Judgment text and source record
21 paragraphs
Mwenge v Republic (Criminal Petition 37 of 2020) [2022] KEHC 10470 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10470 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Petition 37 of 2020
WM Musyoka, J
June 24, 2022
Between
Samson Mwenge
Petitioner
and
Republic
Respondent
Ruling
1. The undated petition, filed herein on October 9, 2020, seeks re-sentencing. The petitioner had been convicted in Kakamega CMCCRC No 510 of 2010, of robbery with violence, and was given the mandatory death penalty, which was commuted to life imprisonment by the President of the Republic of Kenya.
2. The petition, no doubt, rides on the decision in Francis Karioko Muruatetu & another v 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 re-visit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.
3. The Supreme Court has since re-visited the issue inFrancis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), and clarified that its decision in Francis Karioko Muruatetu & another v 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 v 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 petitioner has benefited from a review of the death sentence, when the President exercised the prerogative of mercy, by commuting the death sentence imposed by the trial court and substituted it with life imprisonment. What the petitioner is inviting me to do has already been done by the President of the Republic, and the death penalty I am asked to review is no longer in force.
6. The undated petition filed on 9th October 2020 is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to Samson Mwenge and to the Office of Director of Public Prosecutions Kakamega.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS…………………24th…………………….….DAY OF ………………June ……………………………………….2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Samson Mwenge, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.