[1997] KECA 179 (KLR)
The Court of Appeal held that it has no jurisdiction to entertain a second appeal against sentence unless the sentence has been enhanced by the High Court, as provided under Section 361(1)(a) of the Criminal Procedure Code. However, the Court retains the power to interfere if the sentence is unlawful or based on...
Source-derived case information.
- Citation
- [1997] KECA 179 (KLR)
- Parties
- Appellant: Charles Andika Zacharia; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 44 of 1994
- Procedural Posture
- Criminal Appeal / Second Appeal; Judgment on Sentence
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Robbery Offences, Concurrent and Consecutive Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Andika Zacharia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal; Judgment on Sentence
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain a second appeal against sentence where the sentence has not been enhanced by the High Court.
- 2 Whether the magistrate erred in principle by ordering the sentence on the third count to run consecutively rather than concurrently with the sentences on the first two counts.
Ratio Decidendi
The Court of Appeal held that it has no jurisdiction to entertain a second appeal against sentence unless the sentence has been enhanced by the High Court, as provided under Section 361(1)(a) of the Criminal Procedure Code. However, the Court retains the power to interfere if the sentence is unlawful or based on wrong principles. In this case, the magistrate was aware of the previous sentences and the facts of the case, and exercised discretion to order the sentence on the third count to run consecutively. The Court found no error in principle or unlawfulness in the sentencing decision, and therefore declined to interfere with the sentence imposed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
CORAM: COCKAR, C.J., SHAH & LAKHA, JJ.A.
CRIMINAL APPEAL NO. 44 OF 1994
BETWEEN
CHARLES ANDIKA ZACHARIA ...................... APPELLANT
AND
REPUBLIC ............................................... RESPONDENT
(Appeal from conviction & sentence of the High Court of Kenya at Eldoret (Aganyanya J) dated 20th August, 1993 in H.C.CR.A. NO. 72 OF 1993) ******************
JUDGMENT OF THE COURT
This is a second appeal against sentence. Appellant was charged on 3 counts in respect of robberies which were committed on three different dates in the same month that is, 9th, 19th and 25th - 26th January, 1993. He pleaded guilty on 17. 2.93 to the last two counts and was sentenced to 6 years imprisonment with 2 strokes on each count. Prison sentences were ordered to run concurrently. On 4. 3.93 his trial on the 3rd count was to commence before a different magistrate.
Before the trial commenced he pleaded guilty to the 3rd count and was sentenced to 6 years imprisonment with 2 strokes. No second appeal lies to the Court of Appeal against sentence - S. 361 (1) (a), unless the sentence has been enhanced by the High Court. However, if the sentence that was imposed is unlawful or based on wrong principles the Court of Appeal will interfere.
In this case the second magistrate was aware of the fact that the appellant had already been sentenced to six years imprisonment with 2 strokes on two counts to run concurrently.
He decided not to make the sentence run on the 3rd concurrent to the sentences that had been imposed by the other court. He was also aware of all the facts including that the appellant had committed three robberies on three different dates in the same month. In these circumstances, if the magistrate thought it fit for the sentence on the 3rd count to run consecutive to the sentences on the first two counts then, in our view, he has not erred in principle. We do not think that there is anything in the circumstances of this appeal that can call for an interference in the sentence by us. The appeal is therefore dismissed.
Dated and delivered at Nairobi this 22nd day of September, 1997.
A. M. COCKAR -------------
CHIEF JUSTICE
A. B. SHAH ---------------
JUDGE OF APPEAL
A. A. LAKHA ---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR