REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA MISCELLANEOUS CRIMINAL APPLICATION NO. 33 OF 2018 WILLIAM OULO AKAKA...........................................................PETITIONER 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 summons herein, undated, filed herein on 4 th June 2018, 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, contrary to section 8(1)(2) of the Sexual Offences Act, No. 3 of 2006, in Kakamega CMCCRC No. 590 of 2010, and was sentenced to serve life in prison. He filed an appeal at the High Court at Kakamega, whose details he has not provided, which was dismissed. 3. The offence, the subject of the instant proceedings, is not murder, but gang rape or 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, 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 petition is incompetent. The file herein to 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. DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF DECEMBER, 2021 W MUSYOKA JUDGE
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