REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

MISCELLANEOUS CRIMINAL APPLICATION NO. 65 OF 2020

MICHAEL ASHENE OMIDO..........................................................................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 Motion herein, undated, was filed herein on 15^th June 2021, is principally founded 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 applicant seeks review of his sentence, where he had been convicted of robbery with violence, contrary to section 296(2) of the Penal Code, Cap 63, Laws of Kenya, in Butere SRMCCRC No. 1197 of 2008, and was sentenced to twenty-five years in prison. He has not disclosed whether he filed an appeal or not.

3. The offence, the subject of the instant proceedings, is not murder, but robbery with violence, as defined in the Penal Code, 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 application is incompetent. In any case, the issues raised herein should have been raised and canvassed on appeal. If he did not file appeal, then he is way out of time. If he did file appeal, and the same was dismissed, then he cannot get a second chance through this review application. In any event, it appears that he got away rather lightly, for the penalty for robbery with violence is mandatory death, and he appears to be serving a definite jail term. What he is seeking appears to have been addressed by the trial court, or an appellate court. The file herein is to be closed.

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

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 20^TH DAY OF DECEMBER, 2021

W MUSYOKA

JUDGE