Javan Jossera Onsere v Republic [1979] KECA 4 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you can appeal a sentence the High Court increased, but it dismissed this appeal and upheld the jail term.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies to the Court of Appeal against a sentence enhanced by the High Court in exercise of its revisionary jurisdiction under section 364(1) of the Criminal Procedure Code
- 2.Whether the Court of Appeal has power to deal with a sentence enhanced or otherwise altered by the High Court in revision
- 3.Whether the enhanced sentence of two and a half years' imprisonment was a reasonable and proper sentence
Key legal issues
#Whether an appeal lies against a sentence enhanced by the High Court in revision
Yes - such an appeal is to be considered as a first appeal, not barred by section 361(1) of the Criminal Procedure Code as an appeal against sentence deemed originally passed by the lower court
The court reasoned that an enhanced sentence should not be deemed the sentence the lower court properly ought to have pronounced, so no second-appeal bar under section 361(1) arises. The principle is analogous to Ageni s/o George v R, where an appeal lay against a sentence imposed by a High Court judge. State counsel accepted this position. Section 3 of the Appellate Jurisdiction Act confers powers on the Court of Appeal no less than those of the High Court, making its powers co-extensive in this context.
Whether the enhanced sentence of two and a half years' imprisonment was proper
Yes - the High Court acted properly in enhancing the sentence, since the appellant stole a large sum from his employer and the original fine with a refund order was obviously inadequate punishment
The appellant stole Shs 72,458/15 as a cashier. Even accepting he acted on instructions of a senior bank official, he knew he was committing an offence, so a custodial sentence was necessary. The magistrate ought to have realised that the refund order was of no value because the appellant was unlikely to be able to meet it. The High Court's sentence was therefore reasonable and proper.
Legal principles established
#- A sentence enhanced by the High Court in its revisional jurisdiction is not deemed to be the sentence passed by the lower court; an appeal against such an enhanced sentence is treated as a first appeal
- The powers of the Court of Appeal are co-extensive with those of the High Court on appeal against a sentence altered by the High Court in revision under section 364 of the Criminal Procedure Code
- A refund order that the convicted person is unlikely to be able to meet is of no value and ought not to be made
Court orders
#- 1.Appeal dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Section 3 of the Appellate Jurisdiction Act, read with section 361(1) of the Criminal Procedure Code
Relief refused
#The appellant's appeal against the enhanced sentence of two and a half years' imprisonment
The High Court acted properly in enhancing the sentence; a custodial sentence was necessary and the enhanced sentence was reasonable and proper
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We do not think that a sentence enhanced by the High Court should be deemed to be the sentence passed by the lower court.
We have therefore the power to deal with a sentence enhanced or otherwise dealt with by the High Court in revision under section 364 of the Criminal Procedure Code.
The sentence passed by the High Court was a reasonable and proper sentence.
The appeal is ordered to be dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Javan Jossera Onsere v Republic [1979] KECA 4 (KLR)", Case Analysis (1979). Criminal Appeal No 48 of 1978. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/4/eng@1979-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.