[2021] KEHC 2275 (KLR)
The High Court acknowledged its jurisdiction to review sentences in murder cases following the Supreme Court's guidance in Francis Karioko Muruatetu & another vs. Republic. However, since the applicant's appeal against conviction and sentence is still pending before the Court of Appeal, the High Court determined...
Source-derived case information.
- Citation
- [2021] KEHC 2275 (KLR)
- Parties
- Applicant: Samuel Malova Obuya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 93 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- Application struck out as an abuse of court process; file closed.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Murder Conviction, Sentence Review, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samuel Malova Obuya
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review a murder sentence when an appeal is pending before the Court of Appeal.
- 2 Whether the Francis Karioko Muruatetu decision on mandatory sentences applies to the applicant's case.
- 3 Whether the current application constitutes an abuse of court process.
Ratio Decidendi
The High Court acknowledged its jurisdiction to review sentences in murder cases following the Supreme Court's guidance in Francis Karioko Muruatetu & another vs. Republic. However, since the applicant's appeal against conviction and sentence is still pending before the Court of Appeal, the High Court determined that it should not exercise its jurisdiction to review the sentence. Entertaining the application would risk conflicting decisions between the High Court and the Court of Appeal, which is already seized of the matter. The application was therefore found to be an abuse of court process and was struck out, with the applicant directed to pursue his remedies before the appellate court.
Court Disposition
Application struck out as an abuse of court process; file closed.
Orders
- The application for sentence review is struck out.
- The file is closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 93 OF 2019
SAMUEL MALOVA OBUYA.......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 Motion herein, undated, but filed herein on 22nd November 2019, 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 in Kakamega HCCRC No. 38 of 2006, of murder contrary to sections 203 and 204 of the Penal Code. He lodged appeal in Kisumu CACRA No. 138 of 2016, which he avers to be still pending, and, therefore, he has not exhausted his appeals.
3. The offence, the subject of the instant proceedings is murder, and the decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), therefore, applies to it. The High Court does have jurisdiction to review the sentence that was imposed by it, based on the decision 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). However, the appeal against the conviction is still pending at the Court of Appeal, where the issue of review of sentence can quite properly be canvassed and addressed. The higher court is seized of the matter and the applicant ought to pursue that option to its logical conclusion. It is not open to the applicant to seek both options, for there is risk that the two courts could come to conflicting determinations. The Court of Appeal got seized of the matter earlier and I should leave it to the Court of Appeal to deal with it, should the applicant be wise enough to urge it there. The current proceedings were, therefore, initiated in abuse of court process and should be struck out, and I hereby do the same. The file shall be closed.
4. 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 15TH DAY OF NOVEMBER, 2021
W MUSYOKA
JUDGE