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Court of AppealStruck OutCriminal Appeal 103 of 1995· [1995] KECA 56 (KLR)

ABDALLA AHMED ABDUL RASHID v REPUBLIC [1995] KECA 56 (KLR)

Court of Appeal of Kenya
19 December 1995
JGJ.E. GicheruROR.S.C. OmoloAAA.M. Akiwumi
174 words in judgment
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The bottom line

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Kenya's Court of Appeal cannot hear a second appeal about a sentence only; such appeals are barred by law and will be struck out.

What this practically means

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Executive summary

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The appellant, Abdalla Ahmed Abdul Rashid, appealed to the Court of Appeal at Nairobi against the judgment of the High Court of Kenya at Nairobi (Patel J) dated 31st May 1995 in H.C.CR.A. No. 398 of 1994. Before the High Court, the appellant had abandoned his appeal against conviction and prosecuted only his appeal against sentence. The Court of Appeal, in a short judgment delivered by the whole bench (Gicheru, Omolo and Akiwumi JJ.A), held that a second appeal to that Court against the decision of the first appellate court could accordingly only be against sentence. Invoking section 361(1)(b) of the Criminal Procedure Code, which expressly debars the Court of Appeal from hearing a second appeal against sentence, the Court concluded that the appeal was incompetent. No authority was cited and no substantive argument on the merits of the sentence was entertained. The Court therefore struck out the appeal in its entirety on 19th December 1995. No separate opinions, dissents, or costs orders appear in the judgment. The binding proposition for lower courts is that a second appeal confined to sentence, following abandonment of an appeal against conviction in the High Court, is barred by section 361(1)(b) of the Criminal Procedure Code and must be struck out as incompetent.

Key legal issues

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01

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

Holding

A second appeal to the Court of Appeal where the first appeal was against sentence only is barred by section 361(1)(b) of the Criminal Procedure Code and is incompetent.

Reasoning

The appellant had abandoned his appeal against conviction in the High Court, leaving only the appeal against sentence before Patel J. His second appeal to the Court of Appeal could therefore only be against sentence. Section 361(1)(b) of the Criminal Procedure Code expressly debars the Court from hearing appeals against sentence in second appeals. Consequently the appeal lacked legal foundation and was struck out rather than heard on the merits.

p. 1

Legal principles established

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  • Where a first appeal in the High Court was against sentence only (the appeal against conviction having been abandoned), a second appeal to the Court of Appeal can only lie against sentence, and section 361(1)(b) of the Criminal Procedure Code debars the Court from hearing such an appeal, rendering it incompetent.

Court orders

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  1. 1.The appellant's appeal is struck out as incompetent
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 398 of 1994
Jurisdiction invoked
Section 361(1)(b) of the Criminal Procedure Code

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, "ABDALLA AHMED ABDUL RASHID v REPUBLIC [1995] KECA 56 (KLR)", Case Analysis (1995). Criminal Appeal 103 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/56/eng@1995-12-19

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