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Court of AppealPartially AllowedCriminal Appeal 1 of 1991

ALI SHABAN v REPUBLIC [1992] KECA 16 (KLR)

Court of Appeal of Kenya
21 January 1992
JGJ.M. GachuhiRKR.O. KwachROR.S.C. Omolo
246 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled it can only correct an unlawful sentence on a second appeal, striking down strokes wrongly imposed on both limbs of a charge.

What this practically means

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Executive summary

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The appellant, Ali Shaban, had pleaded guilty at trial and exercised his right of appeal against sentence to the High Court, where Mr Justice Shields reduced the number of strokes to one stroke on each limb. He then brought a further appeal to the Court of Appeal at Mombasa on sentence only. The Court, composed of Justices of Appeal Gachuhi, Kwach and Omolo in a single judgment of the court, restated that it would normally have no jurisdiction over a lawful sentence on such a second appeal. However, in Criminal Case No 989/88, on a charge of housebreaking and stealing contrary to sections 304(1)(a) and 279(b) of the Penal Code, the magistrate had wrongly awarded strokes on both limbs of the charge, which he should not have done. That illegality gave the Court jurisdiction to intervene. The Court set aside the strokes imposed for the housebreaking count in that case and fixed the total corporal punishment the appellant would receive at 10 strokes of the cane. The appeal succeeded only to that limited extent; the judgment contains no costs order, no separately written opinion, and no dissent. The decision establishes that unlawful sentences fall within the Court of Appeal's second-appeal jurisdiction notwithstanding the general bar on sentence appeals, and that strokes may not be awarded on both limbs of a housebreaking and stealing charge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction over a second appeal on sentence where the sentence is lawful
  2. 2.Whether the strokes imposed in Criminal Case No 989/88 for housebreaking and stealing were unlawful
  3. 3.To what extent the appeal on sentence should succeed

Key legal issues

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01

Jurisdiction of the Court of Appeal over sentence on a second appeal

Holding

The Court of Appeal has no jurisdiction over a lawful sentence on a second appeal, but unlawful sentences fall within its jurisdiction.

Reasoning

Having pleaded guilty, the appellant's only right of appeal lay against sentence to the High Court, which reduced the strokes to one stroke per limb. A second appeal to the Court of Appeal on sentence would ordinarily be outside its jurisdiction if the sentence is lawful. However, in Criminal Case No 989/88 the magistrate wrongly awarded strokes on both limbs of the charge of housebreaking and stealing under sections 304(1)(a) and 279(b) of the Penal Code, making that part of the sentence unlawful. That unlawfulness conferred jurisdiction on the Court to intervene, but only to the extent of the illegality.

p. 2
02

Legality of awarding strokes on both limbs of a charge of housebreaking and stealing

Holding

Awarding strokes on both limbs of a charge of housebreaking and stealing is unlawful; strokes could properly be imposed on only one limb.

Reasoning

The magistrate in Criminal Case No 989/88, dealing with housebreaking and stealing contrary to section 304(1)(a) and section 279(b) of the Penal Code, imposed strokes on both limbs of the charge. The court held this was wrong, rendering that sentence unlawful. The Court therefore set aside the strokes imposed for the housebreaking limb, leaving the appellant to receive a total of 10 strokes of the cane across his cases. The appeal succeeded only to that extent.

p. 2

Legal principles established

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  • On a second appeal the Court of Appeal has no jurisdiction to interfere with a lawful sentence, but where part of a sentence is unlawful the court acquires jurisdiction to set aside that part.
  • An accused person who pleads guilty at trial has a right of appeal against sentence only, to the High Court.

Court orders

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  1. 1.The strokes imposed for housebreaking in Criminal Case No 989/88 set aside
  2. 2.The appellant will in all now receive 10 strokes of the cane
  3. 3.Appeal succeeds only to the extent of setting aside the unlawful strokes

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
RK
majority
RO
majority
On appeal from
High Court of Kenya, Mombasa
H.C. Cr. Appeals Nos 417, 498, 496 & 499 of 1989
Jurisdiction invoked
Appellate jurisdiction over sentence on appeal from the High Court; jurisdiction founded on the unlawfulness of part of the sentence (strokes awarded on both limbs contrary to law)

Relief refused

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Further reduction of the appellant's sentences beyond the reduction already effected by the High Court

The remaining sentences were lawful and the Court of Appeal has no jurisdiction over a lawful sentence on second appeal

p. 2

Costs

No costs order made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As the appellant had pleaded guilty at his trial he had a right of appeal against sentence to the High Court which he duly exercised.
p. 2Right of appeal against sentence following a guilty plea
the present appeal to us is on sentence on which we would normally have no jurisdiction if the sentence is lawful
p. 2Second appeal on sentence - jurisdiction limited to unlawful sentences
We therefore set aside the strokes imposed for housebreaking in Criminal Case NO 989/88. In all the appellant will now receive 10 strokes of the cane. To that extent only the appeal succeeds.
p. 2Final orders - partial success on appeal

Issues in the judgment

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minor

Repetition/typographical error in the judgment text: a clause appears duplicated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ALI SHABAN v REPUBLIC [1992] KECA 16 (KLR)", Case Analysis (1992). Criminal Appeal 1 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/16/eng@1992-01-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.