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Court of AppealDismissedCriminal Appeal 44 of 1994· [1997] KECA 30 (KLR)

Charles Andika Zacharia v Republic

Court of Appeal of Kenya
22 September 1997
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The bottom line

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Kenya's Court of Appeal confirmed it cannot review a sentence on a second appeal unless the sentence was enhanced or based on wrong principles.

What this practically means

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Executive summary

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This was a second appeal against sentence by Charles Andika Zacharia, who had been charged with three counts of robbery committed on three different dates in January 1993. He pleaded guilty to the last two counts on 17 February 1993 and received concurrent sentences. Before a different magistrate, he then pleaded guilty to the third count on 4 March 1993 and was sentenced to six years imprisonment with two strokes, that sentence to run consecutively to the earlier concurrent sentences. The High Court at Eldoret (Aganyanya J) dismissed his first appeal on 20 August 1993, and he brought a second appeal to the Court of Appeal. The Court of Appeal (Cockar CJ, Shah and Lakha JJA) restated the jurisdictional bar in section 361(1)(a) of the Criminal Procedure Code: no second appeal lies against sentence unless the sentence was enhanced by the High Court, though the court retains power to interfere where a sentence is unlawful or based on wrong principles. The court held that the second magistrate was fully aware of the prior concurrent sentences and of all the facts, including that the appellant had committed three robberies in the same month, and therefore did not err in principle in ordering the sentence on the third count to run consecutively. Finding nothing calling for interference, the court dismissed the appeal in a single judgment of the court delivered at Nairobi on 22 September 1997. No costs order was made and no authorities were cited.

Key legal issues

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01

Jurisdiction over a second appeal against sentence

Holding

A second appeal against sentence does not lie unless the sentence was enhanced by the High Court; the exception is where the sentence is unlawful or based on wrong principles

Reasoning

Section 361(1)(a) of the Criminal Procedure Code bars second appeals against sentence save where the High Court enhanced the sentence. The court nonetheless retains a supervisory power to interfere where the sentence imposed is unlawful or rests on wrong principles. The appellant's appeal therefore had to be justified on the basis of an error of principle in the consecutive sentencing order.

p. 1
02

Whether consecutive sentencing constituted an error of principle

Holding

It was not an error of principle for the magistrate, fully aware of the prior concurrent sentences and the facts, to make the sentence on the third count consecutive

Reasoning

The second magistrate knew the appellant had already been sentenced to six years imprisonment with two strokes on two counts running concurrently, and knew the appellant had committed three robberies on three different dates in the same month. In those circumstances, a decision to make the sentence on the third count consecutive to the earlier sentences reflected a lawful exercise of sentencing discretion and disclosed no error of principle warranting appellate interference.

p. 1

Legal principles established

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  • No second appeal lies to the Court of Appeal against sentence under section 361(1)(a) of the Criminal Procedure Code unless the sentence has been enhanced by the High Court; but the Court of Appeal will interfere where the sentence is unlawful or based on wrong principles
  • A sentencing magistrate who is aware of prior sentences imposed on an accused and of the circumstances of the offences does not err in principle in ordering a sentence to run consecutively

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The sentence imposed by the magistrate (consecutive on the third count) is left undisturbed
On appeal from
High Court of Kenya at Eldoret
H.C.CR.A. No. 72 of 1993
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal against sentence lies only where sentence was enhanced by the High Court)

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, "Charles Andika Zacharia v Republic", Case Analysis (1997). Criminal Appeal 44 of 1994. Source: 

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