[1992] KECA 16 (KLR)
The Court of Appeal held that it ordinarily lacks jurisdiction to entertain an appeal against sentence if the sentence is lawful. However, where the sentence imposed is unlawful, as in the present case where the Magistrate awarded strokes on both limbs contrary to the law, the appellate court acquires jurisdiction...
Source-derived case information.
- Citation
- [1992] KECA 16 (KLR)
- Parties
- Appellant: Ali Shaban; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1 of 1991
- Procedural Posture
- Criminal Appeal / Appeal From High Court Judgment on Sentence
- Outcome
- appeal partially allowed
- Legal Topics
- Sentencing Procedure, Unlawful Sentence, Jurisdiction on Sentence, Housebreaking, Stealing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Shaban
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court Judgment on Sentence
Legal Issues
- 1 Whether the appellate court has jurisdiction to hear an appeal on sentence where the sentence imposed was unlawful.
- 2 Whether the imposition of strokes on both limbs for housebreaking and stealing was lawful.
Ratio Decidendi
The Court of Appeal held that it ordinarily lacks jurisdiction to entertain an appeal against sentence if the sentence is lawful. However, where the sentence imposed is unlawful, as in the present case where the Magistrate awarded strokes on both limbs contrary to the law, the appellate court acquires jurisdiction to intervene. The court found that the sentence of strokes on both limbs for housebreaking and stealing was unlawful. Consequently, the court set aside the strokes imposed for housebreaking in Criminal Case No. 989/88, reducing the total number of strokes to 10. The appeal was allowed to this limited extent only.
Court Disposition
appeal partially allowed
Orders
- The strokes imposed for housebreaking in Criminal Case No. 989/88 are set aside.
- The appellant will now receive 10 strokes of the cane in total.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT MOMBASA
Criminal Appeal 1 of 1991
ALI SHABAN ………………………………….. APPELLANT
AND
REPUBLIC ……………………….………….. RESPONDENT
(Appeal from a judgment of the High Court of Kenya
Mombasa (Mr Justice J.F. Shields) dated 7th September, 1990
In
H.C.CR. APPEALS NOS 417, 498, 496 & 499 OF 1989)
********************************
JUDGMENT OF THE COURT
As the appellant had pleaded guilty at his trial he had a right of appeal against sentence to the High Court which he duly exercised. The judge reduced the number of strokes to one stroke on each limb. So the present appeal to us is on sentence on which we would normally have no jurisdiction if the sentence on which we would normally have no jurisdiction if the sentence is lawful. In Criminal case NO 989/88 on a charge of housebreaking and stealing contrary to section 304 (1) (a) and section 279(b) of the Penal Code, the Magistrate wrongly awarded strokes on both limbs which he should not have done. To this extent that sentence was unlawful and this gives us jurisdiction to deal with the matter. We therefore set aside the strokes imposed for housebreaking in Criminal Case NO 989/88. In all the appellant will now receive 10 strokes of the cane. To that extent only the appeal succeeds.
Dated and delivered at Mombasa this 21st day of January, 1992.
J.M. GACHUHI
JUDGE OF APPEAL
R.O. KWACH
JUDGE OF APPEAL
R.S.C. OMOLO
JUDGE OF APPEAL