[2021] KEHC 2212 (KLR)
The court held that the petitioners' reliance on the Supreme Court decision in Muruatetu to seek review of their sentences for robbery with violence was misplaced, as the Supreme Court had clarified that its decision on the unconstitutionality of mandatory sentences applied only to murder cases under section 204 of...
Source-derived case information.
- Citation
- [2021] KEHC 2212 (KLR)
- Parties
- Appellant: Oscar Lihanda; Appellant: Josephat Ashiundu; Appellant: Samwel Oyondi; Appellant: Charles Mzee; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 35 of 2020
- Procedural Posture
- Criminal Petition / Ruling on Preliminary Objection/abuse of Process
- Outcome
- petition struck out as abuse of process
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Robbery With Violence, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oscar Lihanda
Appellant
Josephat Ashiundu
Appellant
Samwel Oyondi
Appellant
Charles Mzee
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Preliminary Objection/abuse of Process
Legal Issues
- 1 Whether the petitioners are entitled to sentence review for robbery with violence convictions based on the Supreme Court decision in Muruatetu.
- 2 Whether the current petition is an abuse of court process due to the pendency of a similar earlier petition.
Ratio Decidendi
The court held that the petitioners' reliance on the Supreme Court decision in Muruatetu to seek review of their sentences for robbery with violence was misplaced, as the Supreme Court had clarified that its decision on the unconstitutionality of mandatory sentences applied only to murder cases under section 204 of the Penal Code. Furthermore, the court found that the instant petition was an abuse of court process because an earlier petition based on the same facts and issues was already pending. Consequently, the court struck out the petition.
Court Disposition
petition struck out as abuse of process
Orders
- The petition is struck out for being an abuse of court process.
- The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 35 OF 2020
OSCAR LIHANDA..................................................................................1ST PETITIONER
JOSEPHAT ASHIUNDU.......................................................................2ND PETITIONER
SAMWEL OYONDI...............................................................................3RD PETITIONER
CHARLES MZEE...................................................................................4TH 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 is undated, but was lodged in court on 9th June 2020. It principally rides on Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the petitioners seek review of their sentences, where they had been convicted of robbery with violence, contrary to section 296(2) of the Penal Code, in Kakamega CMCCRC No. 2972 of 2004, and were sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. They lodged appeals in Kakamega HCCRA Nos. 115 to 118 of 2006 and Kisumu CACRA No. 170 of 2014, all of which were dismissed.
3. The petition herein was brought by the same petitioners as in Kakamega HCCCR Petition No. 14 of 2020, based on the same facts, the same criminal matter and the same criminal appeals. Kakamega HCCCR Petition No. 14 of 2020 was filed first, and therefore, the instant petition was filed in abuse of court, in view of the pendency of Kakamega HCCCR Petition No. 14 of 2020. Consequently, I hereby strike out the instant cause.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 15TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE