[2021] KEHC 1417 (KLR)
The High Court determined that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the subsequent 2021 directions, is strictly limited to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement...
Source-derived case information.
- Citation
- [2021] KEHC 1417 (KLR)
- Parties
- Applicant: Sammy Losike; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 85 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentencing Review, Defilement Offence, Mandatory Sentences, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Losike
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Jurisdiction and Application of Supreme Court Precedent
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for offences other than murder, specifically defilement?
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence for defilement in light of the Supreme Court.s clarification?
Ratio Decidendi
The High Court determined that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the subsequent 2021 directions, is strictly limited to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement under section 8 of the Sexual Offences Act, the Muruatetu precedent does not apply. Consequently, the High Court has no jurisdiction to review the sentence imposed by the trial court for defilement. The petition is therefore incompetent and must be dismissed.
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is dismissed as incompetent.
- The file herein is to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
PETITIONS NOS. 85 OF 2018 AND 60 OF 2019
SAMMY LOSIKE......................................................................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 defilement, contrary to section 8(1)(4) of the Sexual Offences Act No. 3 of 2006, Laws of Kenya, in an undisclosed criminal case at Butere law courts, and was sentenced to serve twenty-years in jail. He filed an appeal at the High Court at Kakamega, being HCCRA No. 7 of 2010, where conviction was affirmed and sentence confirmed.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8 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