[2024] KEHC 15650 (KLR)

Republic v JKN (Criminal Revision E147 of 2024) [2024] KEHC 15650 (KLR) (5 December 2024) (Ruling)

Neutral citation: [2024] KEHC 15650 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Revision E147 of 2024

HM Nyaga, J

December 5, 2024

Between

Republic

Respondent

and

JKN

Accused

Ruling

1. By an application dated 3rd April, 2023 the Applicant has sought the following orders:-a.That the Appellant is seeking a declaration by this court that his case revision has merits and it qualifies to be heard.b.That the Applicant be present during the hearing and determination of this matter.

2. The Applicant’s case is that he was charged at Githongo Law Courts in criminal case No. 63 of 2014 with the offence of incest contrary to Section 20(1) of the Sexual Offences Act.

3. That he was convicted and sentenced to life imprisonment. That an appeal to this court, in High Court Criminal Appeal No. 45 of 2014, the appeal was dismissed. That his subsequent appeal to the Court of Appeal, was summarily dismissed.

4. The Applicant thus seeks the court’s intervention and hear and determine infringements of fundamental rights and award remedies.

5. As can be seen, it is not really clear what the Applicant wanted this court to do. When he appeared in court, the applicant stated that his application was actually for re-sentencing.

6. In response to the Application, the prosecutor was of the view that this court lacks the jurisdiction to entertain the case. The prosecutor cited the case of Republic Vs Joshua Gichuki Mwangi [2024] KESC 34 (KLR).

Analysis And Determination 7. Having appeared in court to argue his application, then prayer 2 of the application has already been granted.

8. The question to be answered is whether this court has jurisdiction to entertain this application.

9. In the famous case of The owners of Motor Vessel Lilian S Vs Caltex Oil (K) Ltd (1989) KLR 1, the court had this to state on the question of jurisdiction;“Jurisdiction is everything without which a court of law has no power to make one more step where a court of law has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter the moment it holds the opinion that it is without jurisdiction.”

10. I have considered the matter. It is not in doubt that the accused was charged under the Sexual Offences Act, 2006. The Trial Court sentenced him to life imprisonment. The Applicant’s appeal to this court vide High Court Criminal Appeal No. 45 of 2014 which appeal was dismissed as was his appeal to the Court of Appeal.

11. In the case of Republic Vs Joshua Gichuki Mwangi (Supra) the Supreme Court was deliberate in settling the record straight in regards to the re-sentencing for other offences other than murder. The court hold as follows;“(51)In light of the structural and supervisory interdicts issued, the Court issued the Muruatetu Directions, wherein it, inter alia, pronounced itself on the application of its decision in the Muruatetu Case to other statutes prescribing mandatory or minimum sentences as follows;“10. It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. In that paragraph, we stated categorically that:“[48Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be SC Petition No. E018 of 2023 26 regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right.”Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases.”

12. The ratio decidendi in the decision was summarized as follows;“66. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.

"69. Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, theSexual Offences Actor any other statute.” (my own emphasis)It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.” [Emphasis ours] …...”

13. In light of the above, it is clear that the Supreme Court has ruled out the application of the principles in both Muruatetu 1 and Muruatetu 2 to any other offences other than murder.

14. It is well documented that several convicts had already benefited from the application of the two decisions mutatis mutandis to other offences including robbery with violence and defilement. That has now been halted by the last decision of the Supreme Court.

15. This is a case under the Sexual Offences Act, which provides for minimum sentences in some instances. The act this gives the discretion to the court to impose sentences which are higher than the minimum.

16. The issue of the sentence imposed was fully exhausted an appeal. The second appeal was dismissed as well.

17. I find that having been before the superior courts as set out above this court, even as a Constitutional Court, lacks jurisdiction to address the question of sentence again.

18. Perhaps once the Supreme Court has expressed itself on the application of the principles in Muruatetu in respect to the other offences then the applicant can come back to court.

19. The decision Republic Vs Joshua Gichuki Mwangi (supra) is binding on this court and as such I hold that this court is bereft of the necessary jurisdiction to determine this matter.

20. This application is thus dismissed.

21. The Applicant should continue to serve his sentence and await any further directions that may be given by the Supreme Court.

DATED, SIGNED & DELIVERED IN OPEN COURT AT MERU THIS 5TH DAY OF DECEMBER, 2024. H.M. NYAGAJUDGEIn the presence of: