[2021] KEHC 1352 (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 expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The applicant's conviction and sentence for defilement under section 8(1)(2)...
Source-derived case information.
- Citation
- [2021] KEHC 1352 (KLR)
- Parties
- Applicant: William Oulo Akaka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 33 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentence Review, Mandatory Sentences, Defilement Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Oulo Akaka
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR applies to mandatory sentences for offences other than murder.
- 2 Whether the High Court has jurisdiction to review the applicant's sentence for 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 expressly limited to mandatory sentences for murder under section 204 of the Penal Code. The applicant's conviction and sentence for defilement under section 8(1)(2) of the Sexual Offences Act do not fall within the ambit of the Muruatetu jurisprudence. Consequently, the High Court lacks jurisdiction to review the sentence imposed by the trial court. The application is therefore incompetent and the file is ordered closed.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The petition is incompetent and is hereby dismissed.
- The file herein to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 33 OF 2018
WILLIAM OULO AKAKA...........................................................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 summons herein, undated, filed herein on 4th June 2018, 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, in Kakamega CMCCRC No. 590 of 2010, and was sentenced to serve life in prison. He filed an appeal at the High Court at Kakamega, whose details he has not provided, which was 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.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER, 2021
W MUSYOKA
JUDGE