[2021] KEHC 1885 (KLR)
The High Court determined that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 ruling to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner's conviction was for robbery with violence under section 296(2), the...
Source-derived case information.
- Citation
- [2021] KEHC 1885 (KLR)
- Parties
- Petitioner: Simon Witaba; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 82 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Application for Sentence Review
- Outcome
- petition struck out for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Jurisdiction of High Court, Sentence Review, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Witaba
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and 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 decision applies to mandatory sentences for offences other than murder.
Ratio Decidendi
The High Court determined that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its earlier 2017 ruling to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner's conviction was for robbery with violence under section 296(2), the Muruatetu jurisprudence does not apply. Consequently, the High Court has no jurisdiction to review or alter the sentence imposed by the trial court in this context. The petition was therefore struck out as incompetent.
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. 82 OF 2019
SIMON WITABA..................................................................................................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, undated, but filed herein on 22nd 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 Kakamega CMCCRC No. 59 of 2009, and was sentenced to death, later commuted to life imprisonment by the President of the Republic of Kenya. He lodged appeals in Kakamega HCCRA No. 174 of 2010 and Kisumu CACRA No. 54 of 2014, 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). 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