Wambilianga v Republic [2022] KEHC 2980 (KLR)

Wambilianga v Republic (Criminal Petition 10 of 2020) [2022] KEHC 2980 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2980 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Petition 10 of 2020

WM Musyoka, J

May 13, 2022

Between

Jamin Wafula Wambilianga

Petitioner

and

Republic

Respondent

Ruling

1. The undated Motion, filed herein on 31st January 2020, seeks review of the mandatory sentence of twenty years imprisonment, that was imposed on the petitioner, in Butere PMCCRC No. 166 of 2010. He proffered an appeal in Kakamega HCCRA No. 18 of 2011, which was dismissed. A second appeal in Kisumu CACRA No. 147 of 2014 met a similar fate.

2. The Motion, no doubt, rides on the decision inFrancis 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 revisit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.

3. The Supreme Court has since revisited 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 defilement, as defined in the Sexual Offences Act, Act No 3 of 2006. 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. The undated Motion filed on 31st July 2020 is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to Jamin Wafula Wambilianga and to the Director of Public Prosecutions.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13th DAY OF May, 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Jamin Wafula Wambilianga, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.