[2021] KEHC 2055 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision restricts the application of its 2017 ruling to mandatory sentences for murder only. Since the applicant was convicted of defilement under the Sexual Offences Act, the High Court has no jurisdiction to review the sentence based on...
Source-derived case information.
- Citation
- [2021] KEHC 2055 (KLR)
- Parties
- Applicant: Silvanus Otati Atiba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E005 of 2021
- Procedural Posture
- Criminal Petition / Ruling on Application for Sentence Review
- Outcome
- application struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Jurisdiction of High Court, Sexual Offences, Defilement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvanus Otati Atiba
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for offences other than murder, specifically defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the applicant's sentence for defilement based on the Muruatetu decision?
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision restricts the application of its 2017 ruling to mandatory sentences for murder only. Since the applicant was convicted of defilement under the Sexual Offences Act, the High Court has no jurisdiction to review the sentence based on Muruatetu. The application is therefore incompetent and must be struck out.
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. E005 OF 2021
SILVANUS OTATI ATIBA..............................................................................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 chamber summons herein, undated, but filed on 5th February 2021, 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 applicant seeks review of his sentence, where he had been convicted of defilement, under sections 8(1) (2) of the Sexual Offences Act, No. 3 of 2006, in Vihiga PMCCRC No. 697 of 2009, and was sentenced to serve life in prison. He does not appear to have filed an appeal against both conviction and sentence.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8(1)(2) 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, 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 application, I shall strike it out, for it is incompetent. The said file shall be closed.
4. The Deputy Registrar shall cause copies herein to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE