[2021] KEHC 2185 (KLR)
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its 2017 judgment to mandatory sentences for murder under section 204 of the Penal Code. The applicants were convicted of robbery with violence under section 296(2), which is not covered by the...
Source-derived case information.
- Citation
- [2021] KEHC 2185 (KLR)
- Parties
- Applicant: William Okungu Ritinya; Applicant: Robert Owino Owiti; Applicant: John Osieno Oyagi; Applicant: Brian Nyametho Nyandieka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 35B of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application 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
William Okungu Ritinya
Applicant
Robert Owino Owiti
Applicant
John Osieno Oyagi
Applicant
Brian Nyametho Nyandieka
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Does the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR apply to mandatory sentences for robbery with violence under section 296(2) of the Penal Code?
- 2 Does the High Court have jurisdiction to review sentences for robbery with violence based on the Muruatetu decision?
Ratio Decidendi
The court held that the Supreme Court's clarification in the 2021 Muruatetu decision expressly limited the application of its 2017 judgment to mandatory sentences for murder under section 204 of the Penal Code. The applicants were convicted of robbery with violence under section 296(2), which is not covered by the Muruatetu jurisprudence. Consequently, the High Court has no jurisdiction to review or alter the sentences imposed for robbery with violence on the basis of the Muruatetu decision. The application was therefore incompetent and was struck out for want of jurisdiction.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out as incompetent.
- The file shall be closed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 35B OF 2019
WILLIAM OKUNGU RITINYA.................................................................1ST APPLICANT
ROBERT OWINO OWITI.........................................................................2ND APPLICANT
JOHN OSIENO OYAGI..............................................................................3RD APPLICANT
BRIAN NYAMETHO NYANDIEKA.........................................................4TH APPLICANT
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 application herein, the Motion dated 24th May 2019 and amended on 10th June 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 applicants seek review of their sentences, following their convictions for robbery with violence, under section 296(2) of the Penal Code, in Kisumu CMCCRC No. 181 of 2004. They lodged appeals at the High Court and Court of Appeal at Kisumu, which were dismissed. Ideally, this matter should have been placed before the High Court at Kisumu.
3. Anyhow, 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 application, 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 applicant and the office of Director of Public Prosecutions, Kakamega.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER 2021
W MUSYOKA
JUDGE