Kibet v Republic [2005] KECA 258 (KLR)

Court of Appeal

22 February 2005

JGJ.E. Gicheru EOE.O. O'Kubasu WDW.S. Deverell

211 words in judgment

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The bottom line

Kenya's Court of Appeal refused to reduce a prisoner's sentence, confirming it cannot hear second appeals that only complain a punishment was too harsh.

What this practically means

Executive summary

This brief concerns a short, single-issue second appeal decided by the Court of Appeal at Nakuru on 22 February 2005 before Gicheru CJ, O'Kubasu JA and Deverell Ag JA, sitting as 'JUDGMENT OF THE COURT' with no separate opinions or dissent. The appellant, Geoffrey Yogen Kibet, had been sentenced to 10 years' imprisonment with hard labour together with 10 strokes of corporal punishment. His first appeal, confined to sentence, was dismissed by the High Court of Kenya at Nakuru (Muga Apondi J) on 8 May 2003 in H.C. CR. NO. 427 OF 2001. He then lodged the present second appeal, Criminal Appeal No. 131 of 2003, still on severity of sentence, pleading that the sentence 'should be reduced even for one day'. The Court disposed of the appeal on jurisdiction without hearing it on the merits. Relying on section 361 (1)(a) of the Criminal Procedure Code, it held that severity of sentence is a matter of fact, and that no second appeal lies to the Court of Appeal on a matter of fact. The appeal was therefore incompetent and was struck out; the High Court's dismissal of the first appeal was left undisturbed, and the sentence stands. The judgment makes no order as to costs and cites no case law; its only statutory reference is section 361 (1)(a) of the Criminal Procedure Code. Its binding proposition for lower courts is that a second appeal premised solely on the severity of sentence is incompetent and must be struck out.

Key legal issues

Whether severity of sentence is a matter of fact or of law for purposes of a second appeal under section 361 (1)(a) of the Criminal Procedure Code.

Holding

Severity of sentence is a matter of fact; because no second appeal lies to the Court of Appeal on a matter of fact, an appeal founded only on the severity of sentence is incompetent.

Reasoning

The appellant's appeal was confined to the severity of a sentence of 10 years imprisonment with hard labour and 10 strokes of corporal punishment which had survived the first appeal to the High Court. Applying section 361 (1)(a) of the Criminal Procedure Code, the Court characterized severity of sentence as a matter of fact. Since a second appeal lies only on matters of law, the Court had no jurisdiction to entertain a complaint that the sentence was excessive, however modest the plea that it be reduced even for one day.

p. 2

What is the consequence for a second appeal pleaded solely on the severity of sentence?

Holding

The appeal is incompetent and is struck out; the sentence upheld below is left intact.

Reasoning

Having characterized severity of sentence as a matter of fact under section 361 (1)(a) of the Criminal Procedure Code, and noting that no second appeal lies on a matter of fact, the Court held the appeal incompetent. It did not revisit the sentence on the merits, made no order for rehearing or reduction, and left the High Court's dismissal of the first appeal undisturbed. The only operative order was that the appeal be struck out.

p. 2

Legal principles established

Severity of sentence is a matter of fact, and no second appeal lies to the Court of Appeal on a matter of fact under section 361 (1)(a) of the Criminal Procedure Code; a second appeal premised solely on the severity of sentence is therefore incompetent.
A second appeal that does not lie as a matter of law, here one founded on a matter of fact, is incompetent and is struck out by the Court of Appeal.

Court orders

1.The appellant's appeal to this Court is incompetent and the same is struck out.

Authorities

Legislation

Criminal Procedure CodeSection 361 (1)(a)

On appeal from: High Court of Kenya at Nakuru; H.C. CR. NO. 427 OF 2001
Jurisdiction invoked: Section 361 (1)(a) of the Criminal Procedure Code - severity of sentence is a matter of fact and no second appeal lies to the Court of Appeal on a matter of fact

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kibet v Republic [2005] KECA 258 (KLR)", Case Analysis (2005). Criminal Appeal No. 131 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/258/eng@2005-02-22

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