[2021] KEHC 2249 (KLR)
The High Court has no jurisdiction to review sentences imposed for robbery with violence under section 296(2) of the Penal Code on the basis of the Supreme Court's decision in Muruatetu, as clarified in the 2021 directions. The Muruatetu decision is limited to mandatory sentences for murder and does not extend to...
Source-derived case information.
- Citation
- [2021] KEHC 2249 (KLR)
- Parties
- Appellant: Silas Maliolo Zakayo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 56 of 2018
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Competence of Petition
- Outcome
- petition 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
Silas Maliolo Zakayo
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Competence of Petition
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 petitioner.s sentence in light of the Supreme Court.s directions?
Ratio Decidendi
The High Court has no jurisdiction to review sentences imposed for robbery with violence under section 296(2) of the Penal Code on the basis of the Supreme Court's decision in Muruatetu, as clarified in the 2021 directions. The Muruatetu decision is limited to mandatory sentences for murder and does not extend to other offences. Consequently, the petition seeking review of the sentence is incompetent and must be struck out.
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out as incompetent.
- The file shall be 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. 56 OF 2018
SILAS MALIOLO ZAKAYO.....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, 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, dated 27th June 2018, was filed herein on even date, and it 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 Kakamega CMCCRC No. 2134 of 2009, and was sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. He filed appeals in Kakamega HCCRA No. 1 of 2011 and Kisumu CACRA No. 49 of 2013, both of which were dismissed by the appellate courts.
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, going by 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). Since there is no jurisdiction on my part to entertain the petition, 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 petitioner and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 15TH DAY OF NOVEMBER,2021
W MUSYOKA
JUDGE