[2001] KECA 335 (KLR)
The Court of Appeal held that it is settled law that the question of severity of sentence is a matter of fact and, pursuant to section 361(1)(b) of the Criminal Procedure Code, a second appeal does not lie to the Court of Appeal on such matters. Since the appellant's appeal was solely on the severity of sentence,...
Source-derived case information.
- Citation
- [2001] KECA 335 (KLR)
- Parties
- Appellant: Anna Auma Owino; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 172 of ??
- Procedural Posture
- Criminal Appeal / Second Appeal
- Outcome
- Appeal struck out as incompetent.
- Legal Topics
- Narcotic Drugs Possession, Sentencing Appeals, Criminal Procedure, Jurisdiction on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anna Auma Owino
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal
Legal Issues
- 1 Whether a second appeal lies to the Court of Appeal on the severity of sentence imposed for possession of narcotic drugs.
Ratio Decidendi
The Court of Appeal held that it is settled law that the question of severity of sentence is a matter of fact and, pursuant to section 361(1)(b) of the Criminal Procedure Code, a second appeal does not lie to the Court of Appeal on such matters. Since the appellant's appeal was solely on the severity of sentence, the court found the appeal incompetent and ordered it struck out.
Court Disposition
Appeal struck out as incompetent.
Orders
- The appeal is struck out.
Full Case Text
Judgment text and source record
4 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA (CORAM: GICHERU, BOSIRE & OWUOR, JJ.A.) CRIMINAL APPEAL NO. 172 OF 2000 BETWEEN ANNA AUMA OWINO .................................... APPELLANT AND REPUBLIC ...........................................RESPONDENT( Appeal from a conviction and judgment of the High Court of Kenya at Mombasa (Waki, J.) dated 14th March, 2000 in H.C.CR.A. NO. 241 OF 1999) ****************** JUDGMENT OF THE COURT The appellant, Anna Auma Owino, has come to us on second appeal. She was convicted after a trial before the Chief Magistrate's Court, at Mombasa, of the alternative count of being in possession of a Narcotic Drug contrary to section 3(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994, as read with subsection 1(a) of the same Act, and was thereafter sentenced to 5 years imprisonment. The main count was Trafficking in Narcotic Drugs contrary to section 4(a) of the aforesaid Act. The appellant's first appeal against conviction and sentence was dismissed. In the appeal before us she challenges the severity of the sentence which was imposed on her. It is trite law that the question relating to severity of sentence is a matter of fact. Under section 361(1)(b) of the Criminal Procedure Code a second appeal against sentence does not lie. In the circumstances this appeal is incompetent and is ordered struck out.
Dated and delivered at Mombasa this 22nd day of January, 2001. J. E. GICHERU ............... JUDGE OF APPEAL S. E. O. BOSIRE ............... JUDGE OF APPEAL E. OWUOR ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR