[2022] KEHC 3084 (KLR)
The High Court held that it lacked jurisdiction to re-sentence the applicant for the offence of robbery with violence because the Supreme Court, in its 2021 clarification of the Muruatetu decision, expressly limited the application of its 2017 holding on the unconstitutionality of mandatory sentences to murder cases...
Source-derived case information.
- Citation
- [2022] KEHC 3084 (KLR)
- Parties
- Applicant: Ramadhan Rajab Wamukoya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Case 2 of 2020
- Procedural Posture
- Miscellaneous Criminal Case / Ruling on Application for Re Sentencing
- Outcome
- petition struck out as incompetent
- Judges
- WM Musyoka
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ramadhan Rajab Wamukoya
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Case / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence a petitioner convicted of robbery with violence following the Supreme Court's clarification in the Muruatetu decisions.
- 2 Whether the principle in Francis Karioko Muruatetu & another v Republic [2017] eKLR applies to offences other than murder, specifically robbery with violence.
Ratio Decidendi
The High Court held that it lacked jurisdiction to re-sentence the applicant for the offence of robbery with violence because the Supreme Court, in its 2021 clarification of the Muruatetu decision, expressly limited the application of its 2017 holding on the unconstitutionality of mandatory sentences to murder cases only. The applicant had already benefitted from judicial discretion at trial, having received a twenty-year sentence instead of the mandatory death penalty. Therefore, the application for re-sentencing was incompetent and was struck out.
Court Disposition
petition struck out as incompetent
Orders
- The undated petition filed on 8th January 2020 is struck out.
- Copies of the proceedings to be availed to Ramadhan Rajab Wamukoya and the Office of Director of Public Prosecutions Kakamega.
Full Case Text
Judgment text and source record
21 paragraphs
Wamukoya v Republic (Miscellaneous Criminal Case 2 of 2020) [2022] KEHC 3084 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 3084 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Case 2 of 2020
WM Musyoka, J
June 24, 2022
Between
Ramadhan Rajab Wamukoya
Petitioner
and
Republic
Respondent
Ruling
1. The undated Motion filed herein on 8th January 2020, seeks re-sentencing. The petitioner had been convicted of robbery with violence, contrary to section 296(2) of the Penal Code, Cap 63, Laws of Kenya, and was sentenced to twenty years imprisonment. His appeal to the High Court in Kakamega was dismissed.
2. The petition, no doubt, rides on the decision in Francis 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 re-visit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.
3. The Supreme Court has since re-visited 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 robbery with violence, as defined in the Penal Code. 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. It would appear that the applicant benefitted from the discretion given in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the penalty for the offence of robbery with violence is mandatory death, but instead of the trial court imposing the sentence prescribed by the law, it awarded him twenty years in jail. That which he asks me to do was done by the trial court. His case does not fall within the threshold of Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ).
6. The undated petition filed on 8th January 2020 is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to Ramadhan Rajab Wamukoya and to the Office of Director of Public Prosecutions Kakamega.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24th DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Ramadhan Rajab Wamukoya, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.