[2021] KEHC 1404 (KLR)
The court held that the Supreme Court decision in Muruatetu, which declared the mandatory death sentence for murder unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The Supreme Court.s subsequent directions clarified that the reasoning in Muruatetu does not extend to other...
Source-derived case information.
- Citation
- [2021] KEHC 1404 (KLR)
- Parties
- Appellant: Rodgers Kifunyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 20 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Sentence Review, Robbery With Violence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rodgers Kifunyi
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to mandatory death sentences for robbery with violence under section 296(2) of the Penal Code.
- 2 Whether the High Court has jurisdiction to review the petitioner.s sentence in light of the Supreme Court directions.
Ratio Decidendi
The court held that the Supreme Court decision in Muruatetu, which declared the mandatory death sentence for murder unconstitutional, was expressly limited to murder cases under section 204 of the Penal Code. The Supreme Court.s subsequent directions clarified that the reasoning in Muruatetu does not extend to other offences carrying mandatory sentences, such as robbery with violence under section 296(2) of the Penal Code. Consequently, the High Court lacks jurisdiction to review or resentence persons convicted of robbery with violence on the basis of Muruatetu. The petitioner.s application for sentence review was therefore incompetent and could not be entertained by the court.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The Motion dated 22nd May 2018 is dismissed as incompetent.
- The file herein to be closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
PETITION NO. 20 OF 2018
RODGERS KIFUNYI........................................................................................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 Moition herein, dated 22nd May 2018, 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 robbery with violence, contrary to section 296(2) of the Penal Code, Cap 63, Laws of Kenya, in Vihiga SRMCCRC No. 790 of 2013, and was sentenced to death. He filed an appeal at the High Court at Kakamega, being HCCRA No. 109 of 2014, which was dismissed.
3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, contrary to section 296(2) of the Penal Code, Cap 63, 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 Motion is incompetent. The file herein to be closed.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER, 2021
W MUSYOKA
JUDGE