[2007] KECA 196 (KLR)
The Court of Appeal held that it had no jurisdiction to interfere with the severity of a sentence on a second appeal unless the sentence was unlawful. Since the sentence of ten years imprisonment for possession of bhang was within the statutory limits and lawfully imposed upon the appellants' unequivocal plea of...
Source-derived case information.
- Citation
- [2007] KECA 196 (KLR)
- Parties
- Appellant: Kennedy Wandiga Osika; Appellant: Joshua Omamo Ogelo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 36 & 57 of 2005
- Procedural Posture
- Criminal Appeal / Second Appeal From the High Court
- Outcome
- Appeal dismissed.
- Legal Topics
- Sentencing Principles, Possession of Narcotics, Appeals on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Wandiga Osika
Appellant
Joshua Omamo Ogelo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From the High Court
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to interfere with the severity of a sentence imposed by the High Court on a second appeal.
- 2 Whether the sentence imposed was unlawful.
Ratio Decidendi
The Court of Appeal held that it had no jurisdiction to interfere with the severity of a sentence on a second appeal unless the sentence was unlawful. Since the sentence of ten years imprisonment for possession of bhang was within the statutory limits and lawfully imposed upon the appellants' unequivocal plea of guilty, there was no basis for appellate interference. The purported appeal by the first appellant was properly abandoned, and both appeals were dismissed as the court could not consider the severity of the sentence.
Court Disposition
Appeal dismissed.
Orders
- The appeals are hereby dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Criminal Appeal 36 & 57 of 2005
KENNEDY WANDIGA OSIKA ……….…..………...1ST APPELLANT
JOSHUA OMAMO OGELO ………….….…………2ND APPELLANT
AND
REPUBLIC ……………………………………………RESPONDENT
(Appeal from a sentence of the High Court of Kenya Nakuru (Mr. Justice L. Kimaru) dated 24th November, 2004In H.C.C.RA. NO. 72 & 73 OF 2002)
*****************
JUDGMENT OF THE COURT
These two appellants pleaded guilty to the charge of being in possession of bhang contrary to section 2(1) as read with section 3(1) of the Narcotic and Psychotropic Substances Control Act, Act No. 4 of 1994. Upon their unequivocal admission of the charge, they were each sentenced to ten years imprisonment. They unsuccessfully appealed to the High Court and they now come here on a second appeal. Their appeal is that the sentence is too severe for them. Under the provisions of section 361 of the Criminal Procedure Code, this Court has no jurisdiction to deal with the severity of a sentence. The Court can only interfere where the sentence is unlawful which is not the case here. The first appellant Kennedy Wandiga Osika is clearly right in abandoning his purported appeal. We order that the appeals be and are hereby dismissed.
Dated and delivered at Nakuru this 24th day of September, 2007.
R. S. C. OMOLO
……………………………
JUDGE OF APPEAL
E. O. O’KUBASU
………………………..
JUDGE OF APPEAL
W. S. DEVERELL
…………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR