[2021] KEHC 798 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu directions restricts the application of its 2017 decision to mandatory sentences for murder only. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual Offences Act, the High Court has no jurisdiction to review...
Source-derived case information.
- Citation
- [2021] KEHC 798 (KLR)
- Parties
- Applicant: Nickson Ambei Ashiundu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 60 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Jurisdiction of High Court, Sexual Offences, Application of Supreme Court Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nickson Ambei Ashiundu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic applies to mandatory sentences for offences other than murder.
- 2 Whether the High Court has jurisdiction to review the applicant's sentence for defilement in light of the Supreme Court's directions.
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu directions restricts the application of its 2017 decision to mandatory sentences for murder only. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual Offences Act, the High Court has no jurisdiction to review the sentence imposed by the trial court. The application for sentence review is therefore incompetent and must be dismissed. Any review of the sentence must be sought administratively within the legislative framework governing the prison service and imprisonment in Kenya.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application for review is dismissed as incompetent.
- The file is to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 60 OF 2020
NICKSON AMBEI ASHIUNDU..............................................................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 petition herein, dated 17th November 2020, filed herein on even date, is principally founded on the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the petitioner seeks review of his sentence, where he had been convicted of defilement, contrary to section 8(1)(3) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 2753 of 2008, and was sentenced to serve life in prison. He filed an appeal in Kakamega HCCRA No. 56 of 2008, which was dismissed.
3. The offence, the subject of the instant proceedings, is not murder, but gang rape or defilement, as defined in section 8(1)(3) of the Sexual Offences Act, the decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), therefore, does not apply to it. As a consequence, the High Court has no jurisdiction to review the sentence that was imposed by the trial court, in view of the directions given 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). The application is incompetent. The file herein is to be closed. The review that he would like this court to consider ought to be sought administratively, within the legislative framework that governs the prison service in Kenya and imprisonment as a mode of punishment.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF DECEMBER 2021
W MUSYOKA
JUDGE