[2001] KECA 51 (KLR)
The Court of Appeal held that it lacked jurisdiction to entertain appeals solely on the ground of severity of sentence, as such matters are questions of fact and not law. Section 361(1) of the Criminal Procedure Code restricts second appeals to points of law only. Since the appellants' complaints related exclusively...
Source-derived case information.
- Citation
- [2001] KECA 51 (KLR)
- Parties
- Appellant: Mwalimu Kadzagamba; Appellant: Taab Kadzagamba; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 77 of ??
- Procedural Posture
- Criminal Appeal / Second Appeal to the Court of Appeal
- Outcome
- Appeals struck out as incompetent.
- Judges
- E Owuor
- Legal Topics
- Manslaughter, Sentencing, Appeals Process, Jurisdiction of Appellate Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwalimu Kadzagamba
Appellant
Taab Kadzagamba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal to the Court of Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain an appeal on the severity of sentence in a criminal matter.
- 2 Whether the appellants' appeals on sentence are competent before the Court of Appeal.
Ratio Decidendi
The Court of Appeal held that it lacked jurisdiction to entertain appeals solely on the ground of severity of sentence, as such matters are questions of fact and not law. Section 361(1) of the Criminal Procedure Code restricts second appeals to points of law only. Since the appellants' complaints related exclusively to the harshness of their sentences, the appeals were incompetent and could not be entertained by the Court. Consequently, the appeals were struck out.
Court Disposition
Appeals struck out as incompetent.
Orders
- The consolidated appeals are struck out for being incompetent.
Full Case Text
Judgment text and source record
20 paragraphs
REPULIC OF KENYA
IN THE COURT OF APPEAL AT MOMBASA (CORAM: OMOLO, BOSIRE & OWUOR, JJ.A.) CRIMINAL APPEAL NO. 77 OF 2000
BETWEEN
1. MWALIMU KADZAGAMBA 2. TAAB KADZAGAMBA ................................ APPELLANTS AND REPUBLIC .......................................... RESPONDENT
(Appeal from a conviction and judgment of the High Court of Kenya at Mombasa (Waki, J.) dated 28th June, 1999 in H.C.CR. APPEALS NOS. 15 & 16 OF 1999) ***************************
JUDGMENT OF THE COURT
Both the appellants pleaded guilty to a charge of manslaughter contrary to section 202 as read with 205 of the Penal Code before the Chief Magistrate's Court at Malindi, and were thereafter each sentenced to an imprisonment term of 10 years. Their respective first appeals to the superior court were summarily rejected under section 352(2) of the Criminal Procedure Code. In these consolidated appeals their complaint is that their respective sentences are harsh and should therefore be reduced.
By dint of the provisions of section 361(1) of the Criminal Procedure code a second appeal to this court must only relate to points of law, and by reason of the same section the question as to severity of sentence is a matter of fact. In the circumstances these appeals do not lie in as far as they relate to severity of sentence only. They are therefore struck out for being incompetent.
Dated and delivered at Mombasa this 24th day of January, 2001.
R. S. C. OMOLO
...............
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