[2021] KEHC 1755 (KLR)
The Supreme Court in its 2021 directions clarified that its earlier decision in Muruatetu [2017] eKLR, which declared the mandatory death sentence unconstitutional, was limited to murder cases under section 204 of the Penal Code. The applicant's conviction and sentence for robbery with violence under section 296(2)...
Source-derived case information.
- Citation
- [2021] KEHC 1755 (KLR)
- Parties
- Applicant: Philip Andati Nangabo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 83 of 2019
- 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
Philip Andati Nangabo
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 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 Supreme Court's directions?.
- 3 Is the application for sentence review competent before the High Court?.
Ratio Decidendi
The Supreme Court in its 2021 directions clarified that its earlier decision in Muruatetu [2017] eKLR, which declared the mandatory death sentence unconstitutional, was limited to murder cases under section 204 of the Penal Code. The applicant's conviction and sentence for robbery with violence under section 296(2) of the Penal Code do not fall within the ambit of the Muruatetu decision. Consequently, the High Court has no jurisdiction to review or alter the sentence imposed on the applicant for robbery with violence. The application is therefore incompetent and must be struck out.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent.
- The file is 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. 83 OF 2019
PHILIP ANDATI NANGABO........................................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 Motion herein, undated, but filed herein on 8th October 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 robbery with violence, under section 296(2) of the Penal Code, in Kakamega CMCCRC No. 1663 of 2003, and was sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. He filed appeal in Kakamega HCCRA No. 67 of 2008 and Kisumu CACRA No. 573 of 2010, both of which were dismissed by the appellate court.
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, going by 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). 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 this ruling to be typed, and copies thereof 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