[2021] KEHC 1104 (KLR)
The High Court determined that the Supreme Court's clarification in the 2021 Muruatetu directions expressly limited the application of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual Offences...
Source-derived case information.
- Citation
- [2021] KEHC 1104 (KLR)
- Parties
- Applicant: Simon Musundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E059 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Jurisdiction of High Court, Sexual Offences, Defilement, Applicability of Muruatetu
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Musundi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence for defilement based on the Muruatetu decision.
- 2 Whether the Muruatetu jurisprudence on mandatory sentences applies to offences under the Sexual Offences Act.
Ratio Decidendi
The High Court determined that the Supreme Court's clarification in the 2021 Muruatetu directions expressly limited the application of its 2017 decision to mandatory sentences for murder under section 204 of the Penal Code. Since the applicant was convicted of defilement under section 8(1)(3) of the Sexual Offences Act, the Muruatetu jurisprudence does not apply. Consequently, the High Court lacks jurisdiction to review the sentence imposed by the trial court for defilement. Any review of the applicant's sentence must be sought administratively within the legislative framework governing the prison service and imprisonment in Kenya. The petition was therefore found to be incompetent and...
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is declared incompetent and is dismissed.
- The file is to be closed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E059 OF 2021
SIMON MUSUNDI ......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, 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 petition herein, undated, filed herein on 22nd April 2021, is principally founded 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 defilement, contrary to section 8(1)(3) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 127 of 2008, and was sentenced to serve twenty years in prison. He has not pleaded as to whether he filed any appeal against the said conviction and sentence.
3. The offence, the subject of the instant proceedings, is not murder, but gang rape or defilement, as defined in section 8(1)(3) 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, in view of 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). The petition is incompetent. The file herein is to be closed. The review that he would like this court to consider ought to be sought administratively, within the legislative framework that governs the prison service in Kenya and imprisonment as a mode of punishment.
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.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF DECEMBER, 2021
W MUSYOKA
JUDGE