Charo Karisa Pembe v Republic [1998] KECA 78 (KLR)

Court of Appeal

22 July 1998

JGJ. E. Gicheru ASA. B. Shah EOE. Owuor

338 words in judgment

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The bottom line

Kenya's Court of Appeal cut an 18-year manslaughter sentence to 4 years, ruling age matters and appeals with arguable grounds cannot be dismissed without a hearing.

What this practically means

Executive summary

The appellant was sentenced by the Principal Magistrate's Court at Malindi to 18 years imprisonment for manslaughter contrary to section 205 of the Penal Code. His first appeal to the High Court of Kenya at Mombasa (Justice Ang'awa) was summarily rejected on 3rd December 1996 under section 352(2) of the Criminal Procedure Code. He appealed to the Court of Appeal at Mombasa against that summary rejection. One of the grounds raised in the superior court was that the appellant was 65 years old at the date of sentence on 13th March 1996, making the 18-year sentence manifestly excessive. The Court of Appeal, in a single judgment of the court delivered by Gicheru, Shah and Owuor, JJ.A., agreed that the sentence was manifestly excessive in all the circumstances, particularly the appellant's advanced age, and that the superior court should not have summarily rejected the appeal. The Court allowed the appeal, set aside the order of summary rejection, and admitted the appeal to hearing. Exercising its power under section 3(2) of the Appellate Jurisdiction Act, it reduced the sentence from 18 years to 4 years, running from the date of the original sentence on 13th March 1996. The judgment binds subordinate courts and the High Court on the propriety of summary rejection where an arguable ground on sentence, such as advanced age, exists. No costs order was recorded and no authorities were cited.

Key legal issues

Whether summary rejection of the appeal against sentence was proper where the sentence was manifestly excessive given the appellant's age

Holding

The Court of Appeal held that the 18-year sentence for manslaughter was manifestly excessive in all the circumstances, particularly the appellant's age of 65 at sentencing, and that the superior court ought not to have summarily rejected the appeal under section 352(2) of the Criminal Procedure Code.

Reasoning

The appellant had been sentenced to 18 years imprisonment for manslaughter when he was 65 years old. One of the grounds in the superior court was that the sentence was manifestly excessive on account of his age. The Court of Appeal agreed that age was a material mitigating factor rendering the sentence excessive, so summary rejection deprived the appellant of a hearing on a meritorious ground. The Court set aside the summary rejection, admitted the appeal to hearing, and in the interim exercised its power under section 3(2) of the Appellate Jurisdiction Act to reduce the sentence to 4 years from the original sentence date.

p. 1

Legal principles established

A superior court should not summarily reject an appeal against sentence under section 352(2) of the Criminal Procedure Code where, on account of the appellant's advanced age, the sentence imposed is manifestly excessive.

Court orders

1.The appellant's appeal is allowed
2.The order of the superior court summarily rejecting the appellant's appeal is set aside and the appeal is admitted to hearing
3.Under section 3(2) of the Appellate Jurisdiction Act, the sentence of 18 years imprisonment is reduced to one of 4 years, running from the date of the original sentence, 13th March 1996

Authorities

Legislation

Penal Codesection 205
Criminal Procedure Codesection 352(2)
Appellate Jurisdiction Actsection 3(2)

On appeal from: High Court of Kenya at Mombasa; H.C.CR.A. No. 114 of 1996
Jurisdiction invoked: Section 3(2) of the Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (2)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Wanyeso v Republic (Criminal Appeal 110 of 2022) [2023] KECA 709 (KLR)
[2023] KECA 709 (KLR)9 Jun 2023followed
Republic v Samwel Munyoki Mulungu (Resentence)
[2020] KEHC 4537 (KLR)3 Jul 2020applied

Cite this brief

Caselaw, "Charo Karisa Pembe v Republic [1998] KECA 78 (KLR)", Case Analysis (1998). Criminal Appeal No. 22 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/78/eng@1998-07-22

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