[2021] KEHC 2276 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the subsequent 2021 decision, is expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The applicant was convicted and sentenced for defilement under...
Source-derived case information.
- Citation
- [2021] KEHC 2276 (KLR)
- Parties
- Applicant: Oliver Okutoyi Nandwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 100 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Defilement, Mandatory Sentencing, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oliver Okutoyi Nandwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence for defilement based on the Muruatetu decision?
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the subsequent 2021 decision, is expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The applicant was convicted and sentenced for defilement under section 8(1)(2) of the Sexual Offences Act, which is not covered by the Muruatetu jurisprudence. Consequently, the High Court has no jurisdiction to review or vary the sentence imposed by the trial court on the basis of the Muruatetu decision. The application for sentence review is therefore incompetent and must be struck out.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application for review of sentence is struck out as incompetent.
- The file is closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 100 OF 2019
OLIVER OKUTOYI NANDWA.....................................................................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 Motion herein, undated, but filed herein on 22nd November 2019, principally rides 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 applicant seeks review of his sentence, where he had been convicted of defilement, under section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 2013 of 2014, and was sentenced to life imprisonment. He filed an appeal in Kakamega HCCRA No. 225 of 2015, where the conviction and sentence were affirmed.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined under section 8(1)(2) 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, based on the decision 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). Since there is no jurisdiction on my part to entertain the application, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar, shall cause this ruling to be typed, and copies thereof availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12th DAY OF November 2021
W MUSYOKA
JUDGE