[2015] KECA 255 (KLR)
The Court of Appeal determined that it lacked jurisdiction to entertain the appeal because it was based solely on the severity of the sentence, which is a matter of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly bars the Court from hearing appeals on matters of fact, including the...
Source-derived case information.
- Citation
- [2015] KECA 255 (KLR)
- Parties
- Appellant: Adnas Khayemba; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 47 of 2014
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- Appeal struck out for want of jurisdiction.
- Judges
- DK Musinga, SG Kairu, AK Murgor
- Legal Topics
- Appeals on Sentence, Jurisdiction of Court of Appeal, Handling Stolen Goods, Robbery With Violence, Sexual Offences, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adnas Khayemba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain an appeal based solely on the severity of sentence imposed by the High Court.
- 2 Whether the sentence of ten years' imprisonment for handling stolen goods was excessive.
Ratio Decidendi
The Court of Appeal determined that it lacked jurisdiction to entertain the appeal because it was based solely on the severity of the sentence, which is a matter of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly bars the Court from hearing appeals on matters of fact, including the severity of sentence, from decisions of the High Court in its appellate jurisdiction. As the appellant's challenge was limited to the harshness of the sentence and did not raise any point of law, the Court was compelled to strike out the appeal for want of jurisdiction.
Court Disposition
Appeal struck out for want of jurisdiction.
Orders
- The appeal is struck out.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
CRIMINAL APPEAL NO. 47 OF 2014
CORAM: (MUSINGA, GATEMBU & MURGOR, JJ.A.)
BETWEEN
ADNAS KHAYEMBA ………...............................……. APPELLANT
AND
REPUBLIC …........................................................ RESPONDENT
(Appeal from the judgment of the High Court Of Kenya at Kakamega (Chitembwe, J.) dated 19th March, 2014
in
H.C.CR.A NO. 173 OF 2011
********************
JUDGMENT OF THE COURT
1. The appellant was arraigned before the Senior Resident Magistrate's Court at Mumias where he faced two counts of robbery with violence contrary to section 296 (2) of the Penal Code and an alternative charge of handling stolen goods contrary to section 322 of the Penal Code. The appellant also faced three counts of gang rape contrary to section 10 of the Sexual Offences Act. He was convicted on all the main counts and sentenced to death as by law provided.
2. The appellant was dissastified with the said conviction and sentence and appealed to the High Court at Kakamega, (Chitembwe and Dulu, JJ). The learned judges held that there was insufficient evidence to convict the appellant for robbery with violence and gang rape but found him guilty of the alternative charge of handling stolen goods. The death sentence was therefore set aside and substituted with a sentence to ten years' imprisoment for the offence of handling stolen goods.
3. The appellant's appeal to this Court is against sentence only. The appellant, who appeared in person, argued that the sentence was quite severe and urged the Court to reduce it.
4. Mr. Ketoo for the respondent urged the court not to interfere with the sentence, which he said was lawful.
5. Section 361 (1) (a) of the Criminal Procedure Code states as follows:
“A party to an appeal from a subordinate court may, subject to sub-section (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section-
(a) on a matter of fact, and severity of sentence is a matter of fact.”
6. As this appeal is entirely based on severity of the sentence that was passed by the High Court, we have no jurisdiction to hear the appeal. Consequently, the appeal is struck out.
DATED and delivered at Kisumuthis 6th day of November, 2015
D. K. MUSINGA
…............................
JUDGE OF APPEAL
S. GATEMBU KAIRU
….............................
JUDGE OF APPEAL
A. K. MURGOR
…............................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR