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Court of AppealStruck OutCriminal Appeal No. 53 of 1999

Francis Nyachieo Marube v Republic (Criminal Appeal 53 of 1999) [2002] KECA 36 (KLR)

Court of Appeal of Kenya
11 June 2002
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiSBS.E.O. Bosire
154 words in judgment
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The bottom line

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In Kenya, you get one chance to argue a sentence is too harsh — the Court of Appeal will not hear a second appeal on severity.

What this practically means

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Executive summary

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This is a short order of the Court of Appeal at Kisumu (Kwach, Tunoi and Bosire JJ.A) dated 11 June 2002 in Criminal Appeal No. 53 of 1999. The appellant, Francis Nyachieo Marube, had been convicted in H.C.CR.C. No. 219 of 1998 before Waweru J in the High Court at Kisii, whose judgment was delivered on 28 May 1999. His first appeal to the High Court, which was against the severity of sentence, was dismissed. He then lodged the present appeal, again complaining of the severity of sentence. The Court of Appeal held that such an appeal does not lie, by virtue of the clear provisions of Section 361 of the Criminal Procedure Code, which restricts second appeals. The court declared the appeal incompetent and struck it out. The judgment is a single order of the whole court with no separate opinions, no costs order, and no authorities cited. Its binding proposition for lower courts is that a second appeal to the Court of Appeal founded solely on the severity of sentence is incompetent under Section 361 of the Criminal Procedure Code.

Questions the Court framed

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

  1. 1.Whether an appeal against severity of sentence lies to the Court of Appeal under Section 361 of the Criminal Procedure Code
  2. 2.Whether the appeal is competent

Key legal issues

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01

Competence of a second appeal against severity of sentence

Holding

The appeal is incompetent and is struck out

Reasoning

The appellant's first appeal to the High Court was against severity of sentence and was dismissed. Section 361 of the Criminal Procedure Code confines second appeals to matters of law and does not permit a further appeal on sentence severity. The present appeal therefore does not lie and was struck out.

p. 2

Legal principles established

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  • A second appeal to the Court of Appeal on the ground of severity of sentence is incompetent under Section 361 of the Criminal Procedure Code

Court orders

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  1. 1.The appeal is struck out as incompetent

The bench

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

RK
majority
Philip Kiptoo Tunoi
majority
SB
majority
On appeal from
High Court of Kenya at Kisii
H.C.CR.C. No. 219 of 1998
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (limiting second appeals against sentence)

Relief refused

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Appeal against severity of sentence

A second appeal against sentence does not lie under Section 361 of the Criminal Procedure Code

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.

The appellant's first appeal to the superior court was against severity of sentence. That appeal was dismissed.
p. 2Prior appeal history
His present appeal being an appeal against severity of sentence does not lie in view of the clear provisions of Section 361 of the Criminal Procedure Code.
p. 2Bar on second appeals against sentence
That being the case, this appeal is incompetent and is accordingly struck out.
p. 2Final orders

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, "Francis Nyachieo Marube v Republic (Criminal Appeal 53 of 1999) [2002] KECA 36 (KLR)", Case Analysis (2002). Criminal Appeal No. 53 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/36/eng@2002-06-11

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