[2021] KEHC 2065 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, is strictly limited to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual...
Source-derived case information.
- Citation
- [2021] KEHC 2065 (KLR)
- Parties
- Applicant: Peter Omukuya Mango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 43 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Applicability of Supreme Court Decision
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentencing Review, Mandatory Sentences, Sexual Offences, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Omukuya Mango
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Applicability of Supreme Court Decision
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for offences other than murder, specifically defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence in light of the Supreme Court's clarification in 2021?
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, is strictly limited to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual Offences Act, the Muruatetu decision does not apply. Consequently, the High Court has no jurisdiction to review the sentence imposed by the trial court. The petition is therefore incompetent and the file is ordered closed.
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is declared incompetent and is dismissed.
- The file herein is to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. 43 OF 2019
PETER OMUKUYA MANGO............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 petition herein, undated, was filed herein on 1st April 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 petitioner seeks review of his sentence, where he had been convicted of defilement, contrary to section 8(1)(3) of the Sexual Offences Act, No. 3 of 2006, in Butere SRMCCRC No. 954 of 2009, and was sentenced to serve thirty years in prison. He filed appeals in Kakamega HCCRA No. 11 of 2010 and Kisumu CACRA No. 243 of 2012, which were dismissed, save that at the High Court the sentence was reduced to twenty years’ imprisonment.
3. The offence, the subject of the instant proceedings, is not murder, but gang rape or defilement, as defined in section 8(1)(3) of the Sexual Offences Act, 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, in view of the directions given 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). The petition is incompetent. The file herein to 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 15TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE