[2021] KEHC 1746 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier jurisprudence on mandatory sentencing to murder cases only. Since the petitioner's conviction was for robbery with violence under section 296(2) of the Penal Code, the High Court had...
Source-derived case information.
- Citation
- [2021] KEHC 1746 (KLR)
- Parties
- Appellant: Shaban Juma alias Sande; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 101 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Robbery With Violence, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shaban Juma alias Sande
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence for robbery with violence based on the Supreme Court decision in Muruatetu.
- 2 Whether the Muruatetu jurisprudence on mandatory sentences applies to offences other than murder.
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier jurisprudence on mandatory sentencing to murder cases only. Since the petitioner's conviction was for robbery with violence under section 296(2) of the Penal Code, the High Court had no jurisdiction to review the sentence on the basis of Muruatetu. Any issues regarding the petitioner's age or treatment as a minor should have been raised in the appellate process, not in the present application. Consequently, the application was incompetent and was struck out for want of jurisdiction.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent.
- 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. 101 OF 2019
SHABAN JUMA alias SANDE…….…………….……..……..…..…….PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS…..................................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, dated, but filed herein on 5th December 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 of robbery with violence, under section 296(2) of the Penal Code, in Busia CMCCRC No. 425 of 2005, and was sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. He lodged appeals in Busia HCCRA No. 48 of 2005 and Kisumu CACRA No. 622 of 2010, but both appeals were dismissed.
3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, as defined in section 296(2) of the Penal Code, 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, 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). In any event, some of the issues raised in the application are issues he should have canvassed in his appeals, such as that he was a minor and he should have been treated as such during the trial and for the purpose of sentencing. Since there is no jurisdiction on my part to entertain the application, I shall strike it out, for it is incompetent. The said 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