[2007] KECA 229 (KLR)
The Court of Appeal held that it lacked jurisdiction to entertain a second appeal against sentence where the ground is the severity of sentence, as this is a matter of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly denies the Court jurisdiction in such circumstances. Consequently, the...
Source-derived case information.
- Citation
- [2007] KECA 229 (KLR)
- Parties
- Appellant: Francis Amojong Ekal; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 267 of 2005
- Procedural Posture
- Criminal Appeal / Second Appeal; Judgment
- Outcome
- Appeal dismissed for want of jurisdiction.
- Judges
- AM Githinji, CA Otieno
- Legal Topics
- Appeal on Sentence, Jurisdiction of Appellate Court, Grievous Harm, Plea of Guilty, Severity of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Amojong Ekal
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal; Judgment
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain a second appeal against sentence based on severity of sentence.
- 2 Whether the sentence imposed was lawful and open to further reduction.
Ratio Decidendi
The Court of Appeal held that it lacked jurisdiction to entertain a second appeal against sentence where the ground is the severity of sentence, as this is a matter of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly denies the Court jurisdiction in such circumstances. Consequently, the appeal was dismissed for want of jurisdiction.
Court Disposition
Appeal dismissed for want of jurisdiction.
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CRIMINAL APPEAL 267 OF 2005
BETWEEN
FRANCIS AMOJONG EKAL …….….………………….. APPELLANT
AND
REPUBLIC ………………………………....………. RESPONDENT
(An appeal from a ruling of the High Court of Kenya
Kitale (Lady Justice Karanja) dated 16th June, 2005
in
H.C.CR.C. NO. 16 OF 2005)
***********************
JUDGMENT OF THE COURT
The appellant was convicted on his own plea of guilty by Senior Resident Magistrate, Lodwar for the offence of grievous harm contrary to section 234 of the Penal Code and sentenced to 10 years imprisonment.
On 22nd February, 2005 the appellant arrived home while drunk. He demanded food from his mother Christine Amuron, the complainant in the case. When the complainant informed him that there was no food, the appellant became angry, picked a stool and hit her on the upper left side of the head causing a deep cut wound. The complainant was treated at Lodwar District Hospital. The complainant sustained a swollen left eyelid and deep cut wound on the head which injuries were classified as maim.
The appellant appealed to the High Court at Kitale complaining about the manner the plea was taken and about the stiff sentence. At the hearing of the appeal, the appellant pursued only the appeal against the sentence. The appellant had one previous conviction for assault. The superior court partially allowed the appeal against the sentence and reduced the sentence of 10 years imprisonment to 8 years imprisonment. The appellant has appealed to this Court against the sentence only.
The appeal is opposed on the ground that an appeal against sentence is incompetent under Section 361 (1) (a) of the Criminal Procedure Code.
It is true that section 361 (1) (a) of the Criminal Procedure Act denies this Court jurisdiction on a second appeal to hear an appeal on a matter of fact and states categorically that severity of sentence is a matter of fact.
Thus, this being a second appeal against the severity of the sentence, by section 361 (1) (a) the court has no jurisdiction to entertain it.
In the result, the appeal is dismissed.
Dated and delivered at Eldoret this 21st day of September, 2007.
S. E. O. BOSIRE
……………………………
JUDGE OF APPEAL
E. M. GITHINJI
……………………………
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR