[2021] KEHC 2253 (KLR)
The High Court determined that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, is restricted to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted and sentenced for gang rape or defilement under...
Source-derived case information.
- Citation
- [2021] KEHC 2253 (KLR)
- Parties
- Petitioner: Tom Joash Lipure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 18 of 2020
- Procedural Posture
- Criminal Petition / Ruling on Jurisdiction and Applicability of Supreme Court Decision
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentencing Review, Mandatory Sentences, Sexual Offences, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Joash Lipure
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Jurisdiction and Applicability of Supreme Court Decision
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 under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence for gang rape or defilement in light of the Supreme Court's clarification?
Ratio Decidendi
The High Court determined that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in 2021, is restricted to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted and sentenced for gang rape or defilement under section 8(1)(2) of the Sexual Offences Act, the Muruatetu decision does not apply. Consequently, the High Court lacks jurisdiction to review the sentence imposed by the trial court. The petition is therefore incompetent and must be dismissed.
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is dismissed as incompetent.
- The file herein to 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. 18 OF 2020
TOM JOASH LIPURE.............................................................................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, dated 8th June 2020, filed herein on 23rd June 2020, 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 gang rape or defilement, contrary to section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Vihiga PMCCRC No. 502 of 2009, and was sentenced to serve twenty years in prison. He filed appeals in Kakamega HCCRA No. 71 of 2010 and Kisumu 34 of 2013, which were dismissed.
3. The offence, the subject of the instant proceedings, is not murder, but gang rape or 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, 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 to 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 15THDAY OF NOVEMBER,2021
W MUSYOKA
JUDGE