[2017] KECA 562 (KLR)
The Court of Appeal determined that it lacked jurisdiction to entertain the appeal because the appellant challenged only the severity of the sentence, which is a matter of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly bars the Court from hearing appeals on matters of fact, including...
Source-derived case information.
- Citation
- [2017] KECA 562 (KLR)
- Parties
- Appellant: Stephen Chebii Cheboiwo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 125 of 2014
- 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
- Appeals on Sentence, Jurisdiction of Court of Appeal, Grievous Harm, Penal Code Section 234
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Chebii Cheboiwo
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 an appeal against the severity of sentence only.
- 2 Whether the sentence imposed on the appellant was excessive or unlawful.
Ratio Decidendi
The Court of Appeal determined that it lacked jurisdiction to entertain the appeal because the appellant challenged only the severity of the sentence, which is a matter of fact and not law. Section 361(1)(a) of the Criminal Procedure Code expressly bars the Court from hearing appeals on matters of fact, including the severity of sentence, from decisions of the High Court in its appellate jurisdiction. As such, the appeal was 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
33 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: MUSINGA, GATEMBU & MURGOR, JJ.A.)
CRIMINAL APPEAL NO. 125 OF 2014
BETWEEN
STEPHEN CHEBII CHEBOIWO ……….…….………..…. APPELLANT
AND
REPUBLIC ……………………….…………………..… RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Eldoret, (Kimondo, J.) dated the 28th day of November, 2013
in
HCCRA NO. 172 OF 2011)
****************
JUDGMENT OF THE COURT
1. The appellant was convicted of a felony of causing grievous harm contrary to section 234 of the Penal Code. He was sentenced to 15 years’ imprisonment. His first appeal to the High Court against both conviction and sentence was rejected.
2. The appellant, who was unrepresented, preferred a second appeal to this Court. The appeal is however against sentence only. The appellant contended that it was very severe. He urged the Court to exercise leniency and reduce the sentence by 3 years so that he could be set free, having been in prison custody since 8th August, 2011.
3. Mr. Mulati, Senior Principal Prosecution Counsel, opposed the appeal, submitting that the court had no jurisdiction to entertain the appeal as it was purely against a lawful sentence.
4. We agree with Mr. Mulati. 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. In view of the foregoing, we find that this Court has no jurisdiction to entertain this appeal as it relates to severity of sentence, which is a matter of fact. Consequently, we hereby dismiss the appeal. It is so ordered.
DATED and Delivered at Eldoret this 27th day of April, 2017.
D. K. MUSINGA
…………………..………….
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
………………………………..
JUDGE OF APPEAL
A. K. MURGOR
………………….…………..
JUDGE OF APPEAL
I confirm that this is
a true copy of the original.
DEPUTY REGISTRAR.