Case ID:185925

Elphas Muhanji Mutsotso v Republic [2021] eKLR

Case Metadata

Case Number:

Criminal Petition 61 of 2019

Parties:

Elphas Muhanji Mutsotso alias Kizito v Republic

Date Delivered:

12 Nov 2021

Case Class:

Criminal

Court:

High Court at Kakamega

Case Action:

Ruling

Judge(s):

William Musya Musyoka

Citation:

Elphas Muhanji Mutsotso v Republic [2021] eKLR

Court Division:

Criminal

County:

Kakamega

Case Outcome:

Application struck out

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL PETITION NO. 61 OF 2019

ELPHAS MUHANJI MUTSOTSO alias KIZITO

..............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 petition herein, dated 17

th

July 2019, filed on 19

th

July 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 petitioner seeks review of his sentence, where he had been convicted of defilement of a girl, under sections 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 1895 of 2010, and was sentenced to serve twenty years in prison. He filed appeal in Kakamega HCCRA No. 127 of 2011 and Kisumu CACRA No. 194 of 2012, where both appellate courts affirmed the conviction in Kakamega CMCCRC No. 1895 of 2010, and confirmed the sentence.

3. The offence, the subject of the instant proceedings, is not murder, but 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, 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 petitioner and the office of Director of Public Prosecutions, Kakamega.

PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12

TH

DAY OF NOVEMBER 2021

W MUSYOKA

JUDGE