[2011] KECA 384 (KLR)
The Court of Appeal held that it lacked jurisdiction to entertain a second appeal solely on the ground of severity of sentence, as expressly provided by section 361(1)(a) of the Criminal Procedure Code. The appellant's challenge was confined to the severity of the sentences, and he did not contest the convictions....
Source-derived case information.
- Citation
- [2011] KECA 384 (KLR)
- Parties
- Appellant: Michael Murasia alias Chotoi David; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 51 of 2010
- Procedural Posture
- Criminal Appeal / Second Appeal From Summary Rejection of First Appeal on Sentence
- Outcome
- Appeal dismissed for want of jurisdiction.
- Judges
- JE Gicheru
- Legal Topics
- Severity of Sentence, Jurisdiction on Appeal, Summary Rejection of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Murasia alias Chotoi David
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Summary Rejection of First Appeal on Sentence
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain a second appeal solely on the ground of severity of sentence.
- 2 Whether the summary rejection of the first appeal by the High Court was proper.
Ratio Decidendi
The Court of Appeal held that it lacked jurisdiction to entertain a second appeal solely on the ground of severity of sentence, as expressly provided by section 361(1)(a) of the Criminal Procedure Code. The appellant's challenge was confined to the severity of the sentences, and he did not contest the convictions. The High Court had properly exercised its power under section 352(2) to summarily dismiss the first appeal, as the sentences imposed were within the law and not manifestly excessive. The appellant's invocation of a constitutional right to appeal could not override the statutory limitations on the Court's jurisdiction. Consequently, the appeal was dismissed for want of jurisdiction.
Court Disposition
Appeal dismissed for want of jurisdiction.
Orders
- The appeal is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: GICHERU, C.J., BOSIRE & ONYANGO OTIENO, JJ.A.)
CRIMINAL APPEAL NO. 51 OF 2010
BETWEEN
MICHAEL MURASIA ALIAS CHOTOI DAVID …………...APPELLANT
AND
REPUBLIC ……….…………………………………….....RESPONDENT
(Appeal from an order of summary rejection of the High Court of Kenya at Eldoret (Ombija, J.) dated 16th February, 2010
in
H.C.CR.A. NO. 61 OF 2009)
*************
JUDGMENT OF THE COURT
The appellant Michael Murasia alias David Chotoi, whom we shall hereinafter refer to as the appellant, was charged with two counts before the Principal Magistrate’s Court at Kapenguria, the first one being stealing from the person contrary to section 279 (a) of the Penal Code. The second count was one of malicious damage to property contrary to section 339 (1) of the same Code. He pleaded guilty to both counts, and he was thereafter sentenced to concurrent terms of 7 years and 3 years imprisonment respectively. His first appeal to the superior court was rejected summarily under section 352 (2) of the Criminal Procedure Code and hence this appeal. In this appeal the appellant’s main complaint is that the sentences imposed upon him are too harsh and he prays that we reduce them. It was his submission that this Court should exercise its powers in his favour and consider reducing the sentences.
Mr. Oluoch, Senior Principal Counsel opposes the appeal basing his submission on the provisions of section 361 (1) (a) of the Criminal Procedure Code. Under that section no second appeal against severity of sentence may properly be entertained by this Court. In his view therefore this Court lacks jurisdiction to hear this appeal.
The appellant in reply submitted that it is his constitutional right to bring an appeal to this Court and in his view therefore the Court should exercise its powers and reduce the sentences against him.
We have carefully considered the appellant’s appeal. The appellant is not challenging his conviction on the aforesaid two counts. His appeal both to the superior court and to this Court is confined to severity of sentence. Under section 352 (2) aforesaid the superior court had the power to summarily dismiss the appellant’s appeal if the sentences meted out were within the law and did not appear to be manifestly excessive. The superior court having looked at the sentences which were meted against the appellant quite properly ruled that the appellant’s appeal was without any proper basis and was frivolous. We find no basis for differing with that court. Besides this being a second appeal, we would not have jurisdiction to entertain it in view of the clear provisions of section 361 (1) (a) of the Criminal Procedure Code. That being our view of the matter, this appeal is clearly for dismissal.
But the appellant has submitted that he should be allowed, to exercise his constitutional right of appealing to this Court. As the power of this Court is circumscribed by statute our hands are tied, and we cannot but dismiss the appellant’s appeal for want of jurisdiction. It is so ordered.
Dated and delivered at Eldoret this 15th day of February, 2011.
J. E. GICHERU
……………………….
CHIEF JUSTICE
S.E.O. BOSIRE
………………………
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
……………………….
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
DEPUTY REGISTRAR