[2021] KEHC 2147 (KLR)
The Supreme Court in the 2021 Muruatetu clarification expressly limited the application of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. The petitioner was convicted of robbery with violence under section 296(2), which is not covered by the Muruatetu jurisprudence....
Source-derived case information.
- Citation
- [2021] KEHC 2147 (KLR)
- Parties
- Appellant: Patrick Elijah Khaemba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 90 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
- Mandatory Sentencing, Jurisdiction of High Court, Robbery With Violence, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Patrick Elijah Khaemba
Appellant
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 on mandatory sentences apply to robbery with violence cases under section 296(2) of the Penal Code?
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence for robbery with violence based on the Muruatetu decision?
Ratio Decidendi
The Supreme Court in the 2021 Muruatetu clarification expressly limited the application of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. The petitioner was convicted of robbery with violence under section 296(2), which is not covered by the Muruatetu jurisprudence. Consequently, the High Court has no jurisdiction to review or alter the sentence imposed for robbery with violence on the basis of the Muruatetu decision. The application is therefore incompetent and must be struck out.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent.
- The file shall be 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. 90 OF 2019
PATRICK ELIJAH KHAEMBA.............................................................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 robbery with violence, under section 296(2) of the Penal Code, in Kakamega CMCCRC No. 2934 of 2004, 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. 117 of 2005, 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 application, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar, shall cause this copies of ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE