[2021] KEHC 1158 (KLR)
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the 2021 directions, applies exclusively to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement under the Sexual Offences...
Source-derived case information.
- Citation
- [2021] KEHC 1158 (KLR)
- Parties
- Petitioner: Vincent Eshiwani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 32 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Sentence Review Application
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Defilement, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Eshiwani
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Sentence Review Application
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for defilement under the Sexual Offences Act?
- 2 Does the High Court have jurisdiction to review the petitioner.s sentence for defilement in light of the Supreme Court's directions?
Ratio Decidendi
The court held that the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, as clarified in the 2021 directions, applies exclusively to mandatory sentences for murder under section 204 of the Penal Code. Since the petitioner was convicted of defilement under 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 for defilement. The petition is therefore incompetent and the file is to be closed.
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is declared incompetent and is dismissed.
- The file herein is to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL PETITION NO. 32 OF 2019
VINCENT ESHIWANI..........................................................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 Motion herein, undated, filed herein on an unknown date in 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 defilement, contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006, Laws of Kenya, in Kakamega CMCCRC No. 2103 of 2008, and was sentenced to serve life in jail.
3. The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in 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 availed to the applicant and the office of Director of Public Prosecutions, Kakamega.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER, 2021
W MUSYOKA
JUDGE