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Court of AppealDismissedCriminal Appeal 127 of 2007· [2009] KECA 183 (KLR)

Mustafa Elimlim Emekwi v Republic [2009] KECA 183 (KLR)

Court of Appeal of Kenya
27 February 2009
ROR.S.C. OmoloEOE.O. O'KubasuDAD.K.S. Aganyanya
931 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a sentence on a second appeal unless the High Court increased it, so the ten-year term stood.

What this practically means

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Executive summary

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This was a second and final appeal to the Court of Appeal at Eldoret against concurrent sentences of 45 months imprisonment for assault causing actual bodily harm and 10 years imprisonment for indecent assault on a female, both ordered to run concurrently by the Senior Resident Magistrate's Court at Lodwar. The appellant's first appeal to the High Court at Kitale (Ochieng, J) was dismissed, the Judge upholding both sentences as lawful. Before the Court of Appeal, the appellant, appearing in person, sought only a reduction of the ten-year sentence. The State, through Senior Principal State Counsel Mr. Omutelema, objected that the appeal was incompetent because it was directed against the sentence. The court reproduced section 361(1) of the Criminal Procedure Code, which bars second appeals on matters of fact, expressly deems severity of sentence a matter of fact, and prohibits appeals against sentence unless the High Court has enhanced it or the subordinate court lacked the power to impose it. Holding that the appellant was sentenced by the subordinate court, that the High Court had dismissed his appeal without enhancement, and that his complaint was purely about severity, the court agreed with the State that the appeal was incompetent. It further agreed with the learned Judge that the sentences were lawful. The single-judgment court (Omolo, O'Kubasu and Aganyanya, JJ A) dismissed the appeal. No costs order was made and no authorities were cited.

Key legal issues

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01

Competence of a second appeal against sentence

Holding

A second and final appeal complaining of the severity of sentence is incompetent under section 361(1) of the Criminal Procedure Code, since severity of sentence is a matter of fact and no appeal lies against sentence except where the High Court has enhanced it.

Reasoning

The court set out section 361(1) of the Criminal Procedure Code, which bars second appeals on matters of fact and against sentence unless enhanced by the High Court. The appellant had been sentenced by the subordinate court, the High Court dismissed his first appeal and upheld the sentences without enhancement. His complaint before the Court of Appeal was purely about severity, which is a matter of fact. The appeal was therefore incompetent and the sentences lawful.

p. 2
02

Lawfulness of the concurrent sentences of 45 months and 10 years imprisonment

Holding

The sentences of 45 months imprisonment on the first count and 10 years imprisonment on the second count, to run concurrently, were lawful and within the court's powers.

Reasoning

The trial magistrate, in mitigation and sentencing, considered the appellant as a first offender, his mitigation, the nature of the charges and the maximum penalties for each offence, and noted the legislature's enhancement of sentences for sexual offences as reflecting their seriousness. The court agreed with the learned Judge of the High Court that the sentences were lawful and no fault lay in the exercise of the trial magistrate's discretion.

p. 2

Legal principles established

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  • On a second and final appeal, the Court of Appeal has no jurisdiction to entertain an appeal against the severity of sentence imposed by the subordinate court and not enhanced by the High Court; severity of sentence is a matter of fact.

Court orders

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  1. 1.The appeal is dismissed as incompetent

Authorities

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Legislation

  • Penal CodeSection 251
  • Penal CodeSection 144(1)
  • Criminal Procedure Code (Cap 75, Laws of Kenya)Section 361(1)
  • Criminal Procedure Code (Cap 75, Laws of Kenya)Section 7
On appeal from
High Court of Kenya at Kitale
H.C.CR.C. No. 88 of 2006
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (Cap 75) - second and final appeal on matters of law only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Mustafa Elimlim Emekwi v Republic [2009] KECA 183 (KLR)", Case Analysis (2009). Criminal Appeal 127 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/183/eng@2009-02-27

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