[2022] KEHC 2918 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu directions expressly limited the applicability of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual Offences Act, the...
Source-derived case information.
- Citation
- [2022] KEHC 2918 (KLR)
- Parties
- Applicant: Sammy Lusike; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 50 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Defilement Offence, Applicability of Muruatetu, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Lusike
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Muruatetu apply to mandatory sentences for defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence in light of the Supreme Court's directions?
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu directions expressly limited the applicability of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual Offences Act, the Muruatetu jurisprudence does not apply. Consequently, the High Court lacks jurisdiction to review the applicant's sentence on this basis. Any review of the sentence must be sought administratively within the legislative framework governing the prison service and imprisonment in Kenya. The application was found to be incompetent and the file ordered closed.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application is incompetent and is hereby dismissed.
- The file herein is to be closed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 50 OF 2019
SAMMY LUSIKE.......................................................................APPLICANT
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 application herein, undated, filed herein on 9th July 2019, is principally founded 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 applicant seeks review of his sentence, where he had been convicted of defilement, contrary to section 8(1)(3) of the Sexual Offences Act, No. 3 of 2006, in Butere SRMCCRC No. 315 of 2010, and was sentenced to serve twenty years in prison. He filed an appeal in Kakamega HCCRA No. 107 of 2010, which was summarily rejected.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8(1)(3) 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 application is incompetent. The file herein is to be closed.
4. The review that he would like this court to consider ought to be sought administratively, within the legislative framework that governs the prison service in Kenya and imprisonment as a mode of punishment.
5. The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 14th DAY OF JANUARY, 2022
W MUSYOKA
JUDGE