Litala v Republic [2022] KEHC 10473 (KLR)

Litala v Republic (Criminal Petition 14 of 2018) [2022] KEHC 10473 (KLR) (24 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10473 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Petition 14 of 2018

WM Musyoka, J

June 24, 2022

Between

Vitalis Shiangala Litala

Petitioner

and

Republic

Respondent

Ruling

1. The petition dated 21st May 2018, seeks a re-sentencing hearing on the basis of Francis Karioko Muruatetu & another vs. 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.

2. The petitioner had been convicted of robbery with violence, contrary to section 296(2) of the Penal Code, Cap 63, Laws of Kenya, in Kakamega Cmccrc No. 1550 of 2010. He lodged an appeal at the High Court at Kakamega, whose details he does not disclose, but which he says was dismissed.

3. The Supreme Court has clarified, in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), that its decision in Francis Karioko Muruatetu & another vs. 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, Cap 63, Laws of Kenya. The decision in Francis Karioko Muruatetu & another vs. 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 petition, dated 21st May 2018, is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to Vitalis Shiangala Litala and to the Director of Public Prosecutions.

DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24th DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Vitalis Shiangala Litala, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.