[2019] KECA 636 (KLR)
The Court of Appeal dismissed the appeal on the basis that it lacks jurisdiction to entertain a second appeal against severity of sentence, as such matters are questions of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly precludes the Court from hearing appeals on matters of fact,...
Source-derived case information.
- Citation
- [2019] KECA 636 (KLR)
- Parties
- Appellant: Samson Muiruri Mbugua; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 291 of 2011
- Procedural Posture
- Criminal Appeal / Second Appeal to the Court of Appeal Against Sentence Only
- Outcome
- appeal dismissed for want of jurisdiction
- Judges
- DK Musinga, AK Murgor
- Legal Topics
- Defilement Offence, Imbecile Victim, Jurisdiction on Sentence, Second Appeal Limitations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Muiruri Mbugua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal to the Court of Appeal Against Sentence Only
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to entertain a second appeal against sentence only.
- 2 Whether severity of sentence is a matter of law or fact for purposes of appellate jurisdiction.
Ratio Decidendi
The Court of Appeal dismissed the appeal on the basis that it lacks jurisdiction to entertain a second appeal against severity of sentence, as such matters are questions of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly precludes the Court from hearing appeals on matters of fact, including the severity of sentence, at the second appellate stage. The Court reaffirmed this position by reference to prior case law, holding that the appellant's plea for reduction of sentence could not be entertained. The appeal was therefore 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
AT NYERI
(SITTING AT NAKURU)
(CORAM: MUSINGA, GATEMBU, & MURGOR, JJ.A.)
CRIMINAL APPEAL NO. 291 OF 2011
SAMSON MUIRURI MBUGUA................APPELLANT
VERSUS
REPUBLIC...............................................RESPODNENT
(Being an appeal from the judgment of the High Court of
Kenya at Nakuru (Wendoh, J.) Dated 17th June, 2011 in HC.CR. A. No. 185 of 2010)
******************************
JUDGMENT OF THE COURT
1. The appellant was tried and convicted of the offence of defilement of an imbecile contrary to section 146 of the Penal Code as read with section 48(3) of the first schedule to the Sexual Offences Act. He was sentenced to 14 years’ imprisonment. His first appeal to the High Court against sentence was unsuccessful. The appellant then preferred a second appeal to this Court.
2. When the appeal came up for hearing, the appellant, who is unrepresented, told the Court that he had been in prison custody since 21st May, 2010 when he was convicted and sentenced by the trial court; that he has only three (3) months to go before he completes the sentence; that he is now fully rehabilitated and prayed that we reduce the sentence to the period already served and set him at liberty.
3. Miss Nyakira Kibera, learned Prosecution counsel for the respondent opposed the appeal. She submitted that this being a second appeal against sentence only, that is a matter of fact and this Court has no jurisdiction to hear such an appeal.
4. We agree with Miss Kibera. Section 361(1) (a) of the Criminal Procedure Code states as follows:
“A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section –
(a) On a matter of fact and severity of sentence is a matter of fact…”
5. This Court has restated the above position in a number of decisions, see for example, JOSEPH ONYANGO OTIENO & ANOTHER V. REPUBLIC [2000] eKLR. We reiterate that we have no jurisdiction to hear a second appeal against severity of sentence as that is a matter of fact. Consequently, we dismiss this appeal.
Dated and delivered at Nakuru this 11TH Day of June, 2019.
D. K. MUSINGA
.......................................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
.................................................
JUDGE OF APPEAL
A. MURGOR
.................................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR