[2021] KEHC 2239 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory death sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the...
Source-derived case information.
- Citation
- [2021] KEHC 2239 (KLR)
- Parties
- Applicant: Patrick Munyangoli Ombati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 46 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / 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
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Parties
Patrick Munyangoli Ombati
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory death sentences for robbery with violence under section 296(2) of the Penal Code?
- 2 Does the High Court have jurisdiction to review the applicant's sentence in light of the Muruatetu decisions?
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 decision to mandatory death sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the Muruatetu jurisprudence did not apply. Consequently, the High Court had no jurisdiction to review or alter the applicant's sentence on the basis of Muruatetu. The application was therefore incompetent and was struck out for want of jurisdiction.
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
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 46 OF 2020
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 on 10th September 2020, 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 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 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