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Court of AppealDismissedCriminal Appeal 66 of 2006· [2007] KECA 226 (KLR)

Solomon Kiptoo Sawe v Republic [2007] KECA 226 (KLR)

Court of Appeal of Kenya
18 September 2007
ROR.S.C. OmoloPWP.N. WakiJOJ.W. Onyango Otieno
354 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot hear second appeals based only on sentence, so the appellant's 20-year defilement sentence stands.

What this practically means

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Executive summary

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The appellant, Solomon Kiptoo Sawe, was charged with defilement of a girl under sixteen years contrary to Section 145(1) of the Penal Code. He pleaded guilty, was convicted on his own plea and sentenced to 20 years' imprisonment with hard labour. His first appeal against sentence to the High Court at Kitale (Karanja J) was dismissed on 14th February 2006, the learned judge holding the sentence lawful and not excessive and confirming it. Still dissatisfied, the appellant lodged a second appeal to the Court of Appeal at Eldoret, confined to sentence only. The Court of Appeal, in a single judgment of the court delivered by a bench of Omolo, Waki and Onyango Otieno, JJA, held that under Section 361(a) and (b) of the Criminal Procedure Code it had no jurisdiction to entertain a second appeal based on sentence only. The court therefore declared the appeal incompetent and dismissed it, leaving the 20-year sentence confirmed by the High Court undisturbed. The judgment is a short jurisdictional ruling; it affirms the decision of the High Court and binds lower courts to the proposition that second appeals confined to sentence are barred by Section 361(a) and (b) of the Criminal Procedure Code. No costs order was made and no authorities were cited.

Key legal issues

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01

Jurisdiction over a second appeal on sentence only

Holding

The Court of Appeal lacks jurisdiction to entertain a second appeal that is based on sentence only, such an appeal being incompetent.

Reasoning

The appellant had been convicted on his own plea and sentenced to 20 years' imprisonment with hard labour. His first appeal against sentence was dismissed by the High Court (Karanja J), which confirmed the sentence as lawful and not excessive. The appellant then lodged a second appeal confined to sentence. Section 361(a) and (b) of the Criminal Procedure Code expressly excludes second appeals on sentence from the Court of Appeal's jurisdiction, leaving the court with no power to interfere; the appeal therefore had to be dismissed as incompetent.

p. 2

Legal principles established

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  • A second appeal to the Court of Appeal founded on sentence only is barred by Section 361(a) and (b) of the Criminal Procedure Code and is incompetent.

Court orders

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  1. 1.The appeal is dismissed for being incompetent

Authorities

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Legislation

  • Penal CodeSection 145(1)
  • Criminal Procedure CodeSection 361(a) and (b)
On appeal from
High Court of Kenya at Kitale
H.C.CR.A. No. 32 of 2005
Jurisdiction invoked
Second appeal under Section 361(a) and (b) of the Criminal Procedure Code, which bars a second appeal founded on sentence only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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

Cite this brief

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Cite this brief

Caselaw, "Solomon Kiptoo Sawe v Republic [2007] KECA 226 (KLR)", Case Analysis (2007). Criminal Appeal 66 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/226/eng@2007-09-18

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