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Court of AppealStruck OutCriminal Appeal No. 125 of 1990

Boniface Njoroge v Republic [1997] KECA 370 (KLR)

Court of Appeal
28 July 1997
JGJ. E. GicheruAAA. M. AkiwumiALA. A. Lakha
139 words in judgment
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The bottom line

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Kenya's Court of Appeal cannot change a sentence on a second appeal, so Njoroge's sentence appeal was struck out.

What this practically means

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Executive summary

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This is a very brief judgment of the Court of Appeal at Nairobi (Gicheru, Akiwumi and Lakha, JJ.A.) delivered on 28 July 1997 in Criminal Appeal No. 125 of 1990, arising from a sentence imposed by the High Court of Kenya at Nairobi (Justice Tank) on 10 May 1989 in H.C.CR.A. No. 916 of 1987. The appellant, Boniface Njoroge, had appealed against both conviction and sentence. The court recorded that the appeal against conviction was marked withdrawn, leaving only the appeal against sentence for determination. On that remaining ground, the court held that, as a second appeal, it could not interfere with the sentence passed on the appellant by virtue of section 361 of the Criminal Procedure Code, and accordingly struck out the appeal against sentence. The judgment contains no separate opinions, no citation of case law, and no costs order. Its binding significance lies in the restatement of the statutory bar on interference with sentence on second appeals under section 361 of the Criminal Procedure Code.

Key legal issues

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01

Whether the Court of Appeal can interfere with sentence on a second appeal

Holding

The appeal against sentence was struck out because section 361 of the Criminal Procedure Code bars the court from interfering with sentence on a second appeal.

Reasoning

The judgment is a brief disposition. The court noted that the appeal against conviction had been withdrawn by the appellant, leaving only the appeal against sentence. Because this was a second appeal, section 361 of the Criminal Procedure Code deprived the court of power to interfere with the sentence, and the appeal against sentence was therefore struck out rather than heard on its merits.

p. 1

Legal principles established

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  • On a second appeal, the Court of Appeal has no jurisdiction to interfere with the sentence imposed on an appellant, by virtue of section 361 of the Criminal Procedure Code.

Court orders

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  1. 1.The appeal against conviction is marked withdrawn
  2. 2.The appeal against sentence is struck out
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 916 of 1987
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal against sentence)

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, "Boniface Njoroge v Republic [1997] KECA 370 (KLR)", Case Analysis (1997). Criminal Appeal No. 125 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/370/eng@1997-07-28

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