[2021] KEHC 2079 (KLR)
The High Court determined that the Supreme Court's decision in Muruatetu, which clarified the unconstitutionality of mandatory death sentences, was expressly limited to murder cases under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the Muruatetu...
Source-derived case information.
- Citation
- [2021] KEHC 2079 (KLR)
- Parties
- Applicant: Shadrack Shuatani Omwaka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 94 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / 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
Shadrack Shuatani Omwaka
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 robbery with violence under section 296(2) of the Penal Code?.
- 2 Does the High Court have jurisdiction to review the applicant's sentence based on the Muruatetu decision?.
Ratio Decidendi
The High Court determined that the Supreme Court's decision in Muruatetu, which clarified the unconstitutionality of mandatory death sentences, was expressly limited to murder cases under section 204 of the Penal Code. Since the applicant was convicted of robbery with violence under section 296(2), the Muruatetu decision did not apply. Consequently, the High Court had no jurisdiction to review or alter the sentence imposed by the trial court based on Muruatetu. The application was therefore 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
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 94 OF 2019
SHADRACK SHUATANI OMWAKA................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 of robbery with violence, under section 296(2) of the Penal Code, in Mumias PMCCRC No. 1119 of 2010, and was sentenced to death, which was later commuted to life imprisonment by the President of the Republic of Kenya. It is not clear whether he appealed.
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). Since there is no jurisdiction on my part to entertain the Motion, 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 copies 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