[2007] KECA 393 (KLR)
The Court of Appeal held that under section 361(1)(a) of the Criminal Procedure Code, no second appeal lies on a question of fact, and severity of sentence is deemed a question of fact. Therefore, the appellant's complaint regarding the severity of sentence is not a matter the Court of Appeal can entertain on a...
Source-derived case information.
- Citation
- [2007] KECA 393 (KLR)
- Parties
- Appellant: Psiongo Mwomareng; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 209 of 2005
- Procedural Posture
- Criminal Appeal / Second Appeal From the High Court to the Court of Appeal
- Outcome
- Appeal dismissed as incompetent.
- Judges
- AM Githinji
- Legal Topics
- Attempted Murder, Firearm Offences, Sentencing, Appeals, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Psiongo Mwomareng
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From the High Court to the Court of Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain an appeal on severity of sentence on a second appeal.
- 2 Whether the appellant's appeal against severity of sentence is competent.
Ratio Decidendi
The Court of Appeal held that under section 361(1)(a) of the Criminal Procedure Code, no second appeal lies on a question of fact, and severity of sentence is deemed a question of fact. Therefore, the appellant's complaint regarding the severity of sentence is not a matter the Court of Appeal can entertain on a second appeal. As such, the appeal was found to be incompetent and was dismissed accordingly.
Court Disposition
Appeal dismissed as incompetent.
Orders
- The appeal against severity of sentence is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT ELDORET
CRIMINAL APPEAL 209 OF 2005
PSIONGO MWOMARENG …………..….……………… APPELLANT
AND
REPUBLIC ………………….………………………… RESPONDENT
(An Appeal from a Judgment of the High Court of Kenya at Kitale (Karanja, J) dated 16th June, 2005In
H.C.CR. A. No. 41 of 2004)
*****************
JUDGMENT OF THE COURT
The appellant pleaded guilty to two counts; the first one of attempted murder contrary to section 220 (a) of the Penal Code, and the second one of being in possession of a firearm without a firearm certificate contrary to section 4 of the Firearms Act, Cap 114 of the Laws of Kenya. He was sentenced respectively to ten (10) years and three (3) years imprisonment.
His first appeal to the High Court was allowed in the second count, but was dismissed in the first count. In the appeal before us, as was the appeal to the High Court the appellant’s complaint is against severity of sentence.
This being a second appeal, we are guided by the provisions of section 361 (1) (a) of the Criminal Procedure Code. According to that section, no second appeal lies on a question of fact, and by dint of that section, severity of sentence is a question of fact. That being the case, the appellant’s appeal being against severity of sentence is incompetent and it is accordingly dismissed.
Dated and delivered at Eldoret this 20th day of February, 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.