Psiongo Mwomareng v Republic [2007] KECA 393 (KLR)

Court of Appeal of Kenya

20 February 2007

SBS.E.O. Bosire EGE.M. Githinji JOJ.W. Onyango Otieno

272 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed it cannot reduce a sentence in a second appeal — sentence severity is a question of fact, barred by law.

What this practically means

Executive summary

The appellant was convicted after pleading guilty to two counts: attempted murder contrary to section 220(a) of the Penal Code, and possession of a firearm without a certificate contrary to section 4 of the Firearms Act, Cap 114. He received sentences of ten years and three years imprisonment respectively. His first appeal to the High Court at Kitale (Karanja, J) succeeded on the second count but was dismissed on the first. Before the Court of Appeal at Eldoret, the appellant's complaint, as in the first appeal, was confined to the severity of sentence. The Court of Appeal, comprising Bosire, Githinji and Onyango Otieno, JJA, in a single judgment of the court, addressed the competency of the appeal under section 361(1)(a) of the Criminal Procedure Code. That provision bars second appeals on questions of fact. The court held that severity of sentence is a question of fact and that, consequently, a second appeal premised solely on sentence severity is incompetent. The appeal was accordingly dismissed. The judgment is a concise statement of a binding rule: the Court of Appeal's second appellate jurisdiction does not extend to reviewing the adequacy or severity of a sentence, that being a matter of fact. No other issues were determined, no authorities were cited, and no separate opinions were rendered.

Key legal issues

Competency of a second appeal against severity of sentence

Holding

A second appeal against severity of sentence is incompetent because severity of sentence is a question of fact and section 361(1)(a) of the Criminal Procedure Code bars second appeals on questions of fact.

Reasoning

The appellant pleaded guilty to attempted murder and unlawful possession of a firearm and was sentenced to ten and three years respectively. His first appeal to the High Court partially succeeded, quashing the second count. Before the Court of Appeal his sole complaint was severity of sentence. The court held itself bound by section 361(1)(a), which restricts second appeals to matters of law; since sentence severity is a matter of fact, the appeal could not lie and was dismissed.

p. 1

Legal principles established

In a second appeal, no appeal lies against severity of sentence because it is a question of fact within section 361(1)(a) of the Criminal Procedure Code.

Court orders

1.The appellant's appeal against severity of sentence was dismissed as incompetent

Authorities

Legislation

Penal Codesection 220(a)
Firearms Act, Cap 114section 4
Criminal Procedure Codesection 361(1)(a)

On appeal from: High Court of Kenya at Kitale; H.C.CR. A. No. 41 of 2004
Jurisdiction invoked: Section 361(1)(a) of the Criminal Procedure Code (second appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Psiongo Mwomareng v Republic [2007] KECA 393 (KLR)", Case Analysis (2007). Criminal Appeal 209 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/393/eng@2007-02-20

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