Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal 151 of 2006

1. Ekaburat Echakar 2. Achuka Achakar v Republic

Court of Appeal
11 April 2008
SBS. E. O. BosireWDW. S. DeverellDAD. K. S. Aganyanya
846 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal cannot reduce a sentence on a second appeal unless a point of law is raised—sentence severity is treated as fact.

What this practically means

#

Executive summary

#
The appellants, sons of the complainant Echakar Edapal, were charged before the Senior Resident Magistrate's Court at Lodwar with stock theft contrary to section 278 of the Penal Code in respect of 24 camels belonging to their father. They initially denied the charge but changed their plea to guilty at the hearing and were each sentenced to 10 years imprisonment. Their first appeals against sentence to the High Court at Kitale (Karanja J) were dismissed, the Judge finding the sentence lawful and proper after considering the mitigation. On second appeal to the Court of Appeal at Eldoret, the appellants complained that the superior court failed to consider their mitigation, failed to give them the benefit of doubt, and that the camels effectively belonged to them as sons of the complainant; each asked for reduction of the sentence. The Court, in a single judgment delivered by Bosire, Deverell and Aganyanya JJA, held that being a second appeal, only points of law could be raised, and that all the complaints raised were factual. Relying on section 361(1) of the Criminal Procedure Code, which bars second appeals on matters of fact and declares severity of sentence to be a matter of fact, the Court held it had no jurisdiction to interfere. The High Court's dismissal of the first appeals was affirmed and the second appeal was dismissed, the appellants to serve the remainder of their sentences. No costs order was made.

Key legal issues

#
01

Jurisdiction of the Court of Appeal over sentence severity in a second appeal

Holding

The Court of Appeal has no jurisdiction in a second appeal to entertain complaints about the severity of a sentence, as severity of sentence is a matter of fact.

Reasoning

Section 361(1) of the Criminal Procedure Code confines second appeals to matters of law and expressly provides that severity of sentence is a matter of fact. The appellants' complaints that the sentence was too harsh, that mitigation was not considered, and that the camels effectively belonged to them were all factual issues outside the Court's jurisdiction, so the appeal had to be dismissed.

p. 2

Legal principles established

#
  • In a second appeal to the Court of Appeal, only points of law may be raised; severity of sentence is a matter of fact and not law.

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Appellants to serve the remainder of their sentences
On appeal from
High Court of Kenya at Kitale
H.C.CR.A. Nos. 123 & 124 of 2005
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "1. Ekaburat Echakar 2. Achuka Achakar v Republic", Case Analysis (2008). Criminal Appeal 151 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/196/eng@2008-04-11

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