[2021] KEHC 2288 (KLR)
The court found that the applicant's conviction was not for an offence carrying a mandatory sentence and therefore the Supreme Court's Muruatetu jurisprudence was inapplicable. The applicant's grievances regarding sentence should have been raised in an appeal, which he failed to file within the statutory period. As...
Source-derived case information.
- Citation
- [2021] KEHC 2288 (KLR)
- Parties
- Applicant: Protus Osango Murai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E015 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Directions and Competency of Application
- Outcome
- application dismissed as incompetent
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Appeals Out of Time, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Protus Osango Murai
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Directions and Competency of Application
Legal Issues
- 1 Whether the application is properly premised on the Supreme Court decision in Muruatetu regarding mandatory sentences.
- 2 Whether the applicant can seek sentence review outside the appeal process and out of time.
Ratio Decidendi
The court found that the applicant's conviction was not for an offence carrying a mandatory sentence and therefore the Supreme Court's Muruatetu jurisprudence was inapplicable. The applicant's grievances regarding sentence should have been raised in an appeal, which he failed to file within the statutory period. As such, the application was deemed incompetent and dismissed.
Court Disposition
application dismissed as incompetent
Orders
- The application is dismissed.
- The file is to be closed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E015 OF 2021
PROTUS OSANGO MURAI...........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 March 2021, and filed herein on even date, is not premised on Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the subject conviction was not in respect of mandatory sentences. The issues raised in the application are issues that he should have raised in an appeal against sentence. He does not appear to have had filed any appeal. He is way out of time. The application is incompetent and it is hereby dismissed. File to be closed.
3. The Deputy Registrar to cause copies of this ruling to be availed to the applicant and the office of the Director of Public Prosecutions.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE