[2021] KEHC 4273 (KLR)
The High Court lacks jurisdiction to review or resentence convictions for robbery with violence and attempted robbery with violence under sections 296(2) and 297(2) of the Penal Code based on the Muruatetu jurisprudence. The Supreme Court clarified that its decision in Muruatetu only applies to mandatory death...
Source-derived case information.
- Citation
- [2021] KEHC 4273 (KLR)
- Parties
- Appellant: Saleh Nicole Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 63 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Resentencing
- Outcome
- petition struck out
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Resentencing Jurisdiction, Robbery With Violence, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saleh Nicole Makokha
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to review and resentence a petitioner convicted of robbery with violence based on the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR.
- 2 Whether the Muruatetu jurisprudence applies to mandatory sentences for offences other than murder.
Ratio Decidendi
The High Court lacks jurisdiction to review or resentence convictions for robbery with violence and attempted robbery with violence under sections 296(2) and 297(2) of the Penal Code based on the Muruatetu jurisprudence. The Supreme Court clarified that its decision in Muruatetu only applies to mandatory death sentences for murder under section 204 of the Penal Code and does not extend to other offences. As such, the petitioner's application for resentencing is without merit and must be struck out.
Court Disposition
petition struck out
Orders
- The petition for resentencing is struck out.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
PETITION NO. 63 OF 2019
SALEH NICOLE MAKOKHA....................................................PETITIONER
VERSUS
REPUBLIC..............................................................................RESPONDENT
RULING
1. The petitioner herein was convicted in Kakamega CMCCRC No. 2447 of 2004, of attempted robbery with violence, contrary to section 297(2) of the Penal Code, Cap 63, Laws of Kenya, and robbery with violence contrary to section 296(2) of the Penal Code, and was sentenced to death. He filed an appeal at the High Court, being Kakamega HCCRA No. 140 of 2010, which was consolidated with other appeals of his co-accused in the trial court, and the conviction upheld and sentence confirmed in a judgment delivered on 8th March 2012. He filed a second appeal at the Court of Appeal, being Kisumu CACRA No. 45 of 2013, jointly with his co-accused at the trial court, where the conviction and sentence were affirmed.
2. The decision of the Supreme Court, in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ, Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA), was regarded, by the superior courts, as jurisprudence which did away with all mandatory sentences, or, at any rate, gave the courts discretion to override all such mandatory sentences. It is from that background that the petitioner has moved this court in the instant cause, through his petition. He principally seeks re-sentencing, in view of the developments that I have referred to hereabove.
3. However, the Supreme Court has revisited the matter to hold, in a decision in Francis Karioko Muruatetu & another vs. Republic ; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA), that the interpretation and application given by the superior courts of Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ & VP, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA), to cover all mandatory sentences, went far beyond what the Supreme Court intended in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ, Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA). It was held that Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ, Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA) was of application only to convictions for murder under section 204 of the Penal Code, and that it did not cover any other offence.
4. Consequently, and in view of that, the High Court has no jurisdiction to review the sentence imposed on the petitioner, convicted of robbery with violence and attempted robbery with violence, contrary to sections 296(2) and 297(2) of the Penal Code, based on Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ, Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA), in Kakamega CMCCRC No. 2447 of 2004, and affirmed in Kakamega HCCRA No. 140 of 2010 and Kisumu CACRA No. 45 of 2013. The petition before me has no merit, and it is hereby struck out. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 26TH DAY OF AUGUST, 2021
W MUSYOKA
JUDGE