[2021] KEHC 1217 (KLR)
The court held that the Supreme Court's decision in Muruatetu, as clarified in 2021, is limited to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of gang rape under section 10 of the Sexual Offences Act, the Muruatetu principles do not apply. Consequently, the...
Source-derived case information.
- Citation
- [2021] KEHC 1217 (KLR)
- Parties
- Applicant: Rodgers Makutsa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 16 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Sentence Review Application
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Sentence Review, Jurisdiction of High Court, Sexual Offences, Applicability of Muruatetu, Gang Rape
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rodgers Makutsa
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Sentence Review Application
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory sentences for offences other than murder, specifically gang rape under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence in light of the Supreme Court.s clarification?
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu, as clarified in 2021, is limited to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of gang rape under section 10 of the Sexual Offences Act, the Muruatetu principles do not apply. Consequently, the High Court has no jurisdiction to review the sentence imposed by the trial court. The petition is therefore incompetent and the file is to be closed.
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is declared incompetent and is dismissed.
- 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. 16 OF 2020
RODGERS MAKUTSA .....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 petition herein, undated, filed herein on 24th June 2020, 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, contrary to section 10 of the Sexual Offences Act No. 3 of 2006, Laws of Kenya, in Maseno SMCCRC No. 1018 of 2010, and was sentenced to serve twenty-years in jail. He filed an appeal at the High Court at Kisumu, being HCCRA No. 53 of 2012, where conviction was affirmed and sentence confirmed.
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, 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 petition 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