Bonventure Muhkwana Mutali v Republic [2021] KEHC 2283 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

MISCELLANEOUS CRIMINAL APPLICATION NO. E020 OF 2021

BONVENTURE MUHKWANA MUTALI............................................................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, undated, but filed herein on 8th March 2021, 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 murder, under section 203 and 204 of the Penal Code, in Kakamega HCCRC No. 10 of 1990. He filed an appeal at the Court of Appeal at Kisumu, but he has not given particulars, which he says was dismissed, with the conviction being affirmed and the sentence of death confirmed.

3. The offence, the subject of the instant proceedings is murder, and, therefore, the decision in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), applies. As a consequence, the High Court has jurisdiction to review the sentence that was imposed by it, 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).

4. However, I cannot embark on the exercise of considering review of the sentence without sight of the proceedings at the High Court, plus the judgment of the court, and that of the Court of Appeal on appeal. The applicant shall place the said material on record, for they are critical to any exercise of discretion under Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). Once the material is placed on record, the Deputy Registrar shall allocate the matter a date for mention before the Judge.

5. The Deputy Registrar shall cause copies of this ruling to be availed to the petitioner and the office of Director of Public Prosecutions, Kakamega.

PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH  DAY OF NOVEMBER, 2021

W MUSYOKA

JUDGE