[2021] KEHC 2286 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of robbery with violence under section 296(2), the Muruatetu...
Source-derived case information.
- Citation
- [2021] KEHC 2286 (KLR)
- Parties
- Petitioner: Oscar Ingosi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 12 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Robbery With Violence, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oscar Ingosi
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory sentences for robbery with violence under section 296(2) of the Penal Code?.
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence based on the Muruatetu decision?.
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of robbery with violence under section 296(2), the Muruatetu jurisprudence did not apply. Consequently, the High Court lacked jurisdiction to review the sentence imposed on the petitioner, and the petition was incompetent and had to be struck out.
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out as incompetent.
- The file is closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. 12 OF 2019
OSCAR INGOSI....................................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, undated, but filed herein on 19th March 2021, 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 robbery with violence, under section 296(2) of the Penal Code, in Kakamega CMCCRC No. 1401 of 2008, and was sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. He filed an appeal in Kakamega HCCRA No. 84 of 2009, where the appellate court affirmed the conviction.
3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, as defined in section 296(2) of the Penal Code, 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 petition I shall strike it out, for it is incompetent. The said file shall be closed.
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.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE