[2021] KEHC 1749 (KLR)
The court held that the application for review of sentence based on the Muruatetu decision was incompetent because 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. The applicant, having been convicted...
Source-derived case information.
- Citation
- [2021] KEHC 1749 (KLR)
- Parties
- Applicant: Patrick Munyangoli Ombati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E066 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Preliminary Objection/abuse of Process
- Outcome
- application struck out as abuse of process
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Munyangoli Ombati
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Preliminary Objection/abuse of Process
Legal Issues
- 1 Whether the application for sentence review based on the Muruatetu decision is competent where the offence is not murder.
- 2 Whether the application constitutes an abuse of court process due to duplicity.
Ratio Decidendi
The court held that the application for review of sentence based on the Muruatetu decision was incompetent because 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. The applicant, having been convicted of robbery with violence under section 296(2) of the Penal Code, could not rely on Muruatetu for sentence review. Furthermore, the court found that the present application was a duplicate of an earlier application filed by the same applicant arising from the same proceedings, and thus constituted an abuse of court process. Consequently, the application was struck out.
Court Disposition
application struck out as abuse of process
Orders
- The application is struck out as an abuse of court process.
- The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E066 OF 2021
PATRICK MUNYANGOLI OMBATI........................................................APPLICANT
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 application herein, the undated Chamber Summons, filed herein on an unknown date, 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. 813 of 2002, and was sentenced to mandatory death. He filed appeal in Kakamega HCCRA No. 226 of 2002 and Kisumu CACRA No. 242 of 2010, which affirmed the conviction in Kakamega CMCCRC No. 813 of 2002, and confirmed the sentence.
3. The application herein is a replica of that filed in Kakamega High Court Miscellaneous Application No. 46 of 2020, by the applicant herein, arising from the same lower court and appeal proceedings. The cause in Kakamega High Court Miscellaneous Application No. 46 of 2020 was the first in time, and the instant application was, therefore, filed in abuse of court, and it is hereby struck out.
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 15th DAY OF November 2021
W MUSYOKA
JUDGE