[2022] KEHC 2980 (KLR)
The High Court held that it lacked jurisdiction and discretion to review the mandatory sentence imposed for defilement, as the Supreme Court in the 2021 Muruatetu clarification expressly limited the application of its earlier decision to murder cases only. Consequently, the petitioner's application for review of...
Source-derived case information.
- Citation
- [2022] KEHC 2980 (KLR)
- Parties
- Applicant: Jamin Wafula Wambilianga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 10 of 2020
- Procedural Posture
- Criminal Petition / Ruling on Application for Review of Sentence
- Outcome
- application struck out
- Judges
- WM Musyoka
- Legal Topics
- Review of Sentence, 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
Jamin Wafula Wambilianga
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review a mandatory sentence for defilement in light of the Supreme Court decision in Muruatetu.
- 2 Whether the principle in Francis Karioko Muruatetu & another v Republic [2017] eKLR applies to offences other than murder.
Ratio Decidendi
The High Court held that it lacked jurisdiction and discretion to review the mandatory sentence imposed for defilement, as the Supreme Court in the 2021 Muruatetu clarification expressly limited the application of its earlier decision to murder cases only. Consequently, the petitioner's application for review of sentence was incompetent and had to be struck out.
Court Disposition
application struck out
Orders
- The undated Motion filed on 31st January 2020 is struck out.
- Copies of the proceedings to be availed to Jamin Wafula Wambilianga and the Director of Public Prosecutions.
Full Case Text
Judgment text and source record
20 paragraphs
Wambilianga v Republic (Criminal Petition 10 of 2020) [2022] KEHC 2980 (KLR) (13 May 2022) (Ruling)
Neutral citation: [2022] KEHC 2980 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Petition 10 of 2020
WM Musyoka, J
May 13, 2022
Between
Jamin Wafula Wambilianga
Petitioner
and
Republic
Respondent
Ruling
1. The undated Motion, filed herein on 31st January 2020, seeks review of the mandatory sentence of twenty years imprisonment, that was imposed on the petitioner, in Butere PMCCRC No. 166 of 2010. He proffered an appeal in Kakamega HCCRA No. 18 of 2011, which was dismissed. A second appeal in Kisumu CACRA No. 147 of 2014 met a similar fate.
2. The Motion, no doubt, rides on the decision inFrancis Karioko Muruatetu & another v Republic [2017] eKLR(Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), where the court appeared to lay down a general principle that all mandatory sentences were unconstitutional, and to allow trial and appellate courts discretion to revisit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.
3. The Supreme Court has since revisited the issue in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), and clarified that its decision in Francis Karioko Muruatetu & another v Republic[2017] eKLR(Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) was of application only in murder cases, and not any other.
4. The offence that the petitioner was convicted of was defilement, as defined in the Sexual Offences Act, Act No 3 of 2006. The decision in Francis Karioko Muruatetu & another v Republic[2017] eKLR(Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) is, therefore of no application, and I have no discretion or jurisdiction to do that which the petitioner is inviting me to do.
5. The undated Motion filed on 31st July 2020 is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to Jamin Wafula Wambilianga and to the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13th DAY OF May, 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Jamin Wafula Wambilianga, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.