[2021] KEHC 2199 (KLR)
The court clarified that the Supreme Court's decision in Muruatetu is limited to mandatory sentences for murder and does not automatically extend to other offences such as robbery with violence. The petitioner's challenge is based on the argument that detention during the pleasure of the President is...
Source-derived case information.
- Citation
- [2021] KEHC 2199 (KLR)
- Parties
- Petitioner: Patrick M’Baraka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 97 of 2019
- Procedural Posture
- Criminal Petition / Directions/ruling on Preliminary Issue
- Outcome
- Matter fixed for mention for directions; copies of ruling to be served on parties.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Separation of Powers, Rule of Law, Judicial Discretion
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick M’Baraka
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Directions/ruling on Preliminary Issue
Legal Issues
- 1 Whether detention during the pleasure of the President for robbery with violence is unconstitutional for transferring judicial power to the Executive.
- 2 Whether the High Court has jurisdiction to determine the constitutionality of the sentence imposed.
Ratio Decidendi
The court clarified that the Supreme Court's decision in Muruatetu is limited to mandatory sentences for murder and does not automatically extend to other offences such as robbery with violence. The petitioner's challenge is based on the argument that detention during the pleasure of the President is unconstitutional as it transfers judicial power to the Executive, contrary to the rule of law and separation of powers. The High Court affirmed its jurisdiction to hear and determine the constitutional challenge raised by the petitioner and directed that the matter be fixed for mention for further directions.
Court Disposition
Matter fixed for mention for directions; copies of ruling to be served on parties.
Orders
- Deputy Registrar to fix the matter for mention before the Judge for directions on disposal.
- Deputy Registrar to serve copies of this ruling to the petitioner and the Director of Public Prosecutions, Kakamega.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 97 OF 2019
PATRICK M’BARAKA..........................................................................................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, 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, was filed on 232nd November 2019, is not premised on Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the petitioner seeks a declaration that the sentence meted on him, detention during the pleasure of the President of the Republic of Kenya, for robbery with violence, was unconstitutional, on grounds that it amounted to transfer of judicial power to the Executive, and it was, therefore, contrary to the principle of rule of law and separation of powers.
3. The High Court has jurisdiction, therefore, to handle it. Let the Deputy Registrar cause the matter to be fixed for mention, before the Judge, for the purpose of directions on its disposal being given. The Deputy Registrar shall also 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 17TH DAY OF NOVEMBER, 2021
W MUSYOKA
JUDGE