[1998] KECA 77 (KLR)
The Court of Appeal held that it could not interfere with the severity of the sentence on a second appeal where the sentence was legal and properly awarded, especially given the extreme violence involved in the robbery. Furthermore, although the offences were similar in nature, they were not part of a single complex...
Source-derived case information.
- Citation
- [1998] KECA 77 (KLR)
- Parties
- Appellant: Abdallah Chibindo Nyasi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 26 of 1998
- Procedural Posture
- Criminal Appeal / Second Appeal From High Court Conviction and Sentence Confirmation
- Outcome
- appeal dismissed
- Judges
- RO Kwach, E Owuor
- Legal Topics
- Robbery, Sentencing, Concurrent Sentences, Corporal Punishment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdallah Chibindo Nyasi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From High Court Conviction and Sentence Confirmation
Legal Issues
- 1 Whether the sentence in Criminal Case No. 3405 of 1990 should be ordered to run concurrently with that in Criminal Case No. 3361 of 1990.
- 2 Whether the Court of Appeal can interfere with the severity of sentence on a second appeal.
Ratio Decidendi
The Court of Appeal held that it could not interfere with the severity of the sentence on a second appeal where the sentence was legal and properly awarded, especially given the extreme violence involved in the robbery. Furthermore, although the offences were similar in nature, they were not part of a single complex transaction and were separated in time. Therefore, there was no legal basis to order that the sentences be served concurrently. The appeal was dismissed and the sentences were to be served consecutively.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- Sentences to be served consecutively as previously ordered.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA (CORAM: KWACH, TUNOI & OWUOR, JJ.A) CRIMINAL APPEAL NO. 26 OF 1998 BETWEEN
ABDALLAH CHIBINDO NYASI ............................ APPELLANT AND REPUBLIC ........................................... RESPONDENT
(Appeal from a conviction and Sentence, Judgment, or as the case may be of the High Court of Kenya at Mombasa (Mr Justice Oguk) dated 30th November, 1995 in H.C.CR.A NO. 119 OF 1991 ****************** JUDGMENT OF THE COURT
Abdallah Chibindo Nyasi, the appellant, was convicted of robbery and sentenced to serve 10 years imprisonment with 10 strokes of corporal punishment together with the mandatory police supervision period of 5 years upon completion of the sentence. On appeal to the High Court of Kenya at Mombasa the conviction was confirmed but the number of strokes was reduced to five.
In his petition of appeal, the appellant has advanced three grounds of appeal, but when we invited him to address us on them he clearly intimated that he was not now challenging conviction. He urged us to order that the sentence awarded him in Mombasa Chief Magistrate's Court Criminal Case No. 3405 of 1990, the subject of this appeal,be executed concurrently with that imposed in Criminal Case No. 3361 of 1990, which gave rise to this Court's Criminal Appeal No.19 of 1998.
This being a second appeal, we cannot go into the issue of the severity of sentence which is, in fact, legal and properly awarded in view of the extreme violence meted out by the appellant on his victim.
Though the offences of robbery committed by the appellant were connected in kind, they were not of a single complex and were far between in time. There is no basis in law, therefore, to order the terms of imprisonment to be served concurrently. This appeal is dismissed. This is our order.
Dated and delivered at Mombasa this 14th day of July, 1998.
R. O. KWACH
.................
JUDGE OF APPEAL
P. K. TUNOI
..................
JUDGE OF APPEAL
E. OWUOR
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR