[2021] KEHC 2284 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the subsequent 2021 decision, was expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The applicant's conviction and sentence for gang rape under...
Source-derived case information.
- Citation
- [2021] KEHC 2284 (KLR)
- Parties
- Applicant: Peter Wafula Wanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E004 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence 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 Wafula Wanga
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / 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 offences other than murder, specifically gang rape under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence for gang rape based on the Muruatetu decision?
- 3 Should the application for sentence review be entertained or struck out for want of jurisdiction?
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the subsequent 2021 decision, was expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The applicant's conviction and sentence for gang rape under section 10 of the Sexual Offences Act did not fall within the ambit of the Muruatetu jurisprudence. Consequently, the High Court lacked jurisdiction to review the sentence on the basis advanced by the applicant. Furthermore, any issues regarding the propriety or severity of the sentence should have been raised and addressed in the appellate process, which had already been...
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent for want of jurisdiction.
- The file is to be closed.
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. E004 OF 2021
PETER WAFULA WANGA ......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 application herein, dated 5TH January 2021, and filed herein on even 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 petitioner seeks review of his sentence, where he had been convicted of gang rape, under section 10 of the Sexual Offences Act, No. 3 of 2006, in Mumias PMCCRC No. 14 of 2016, and was sentenced to serve fifteen years in prison. He filed appeals in Kakamega HCCRA No. 51 and 52 of 2018, but the appellate court affirmed the conviction, and confirmed the sentence.
3. The offence, the subject of the instant proceedings, is not murder, but gang rape, as defined in section 10 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, 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). In any case, the issues raised with regard to sentence could and should have been raised within the appeal for consideration by the appellate court. 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 to cause copies of this ruling to be availed to the petitioner and the office of the Director of Public Prosecutions.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER,2021
W MUSYOKA
JUDGE