Joseph Etabo v Republic [2009] KECA 269 (KLR)

Court of Appeal of Kenya

29 May 2009

PWP. N. Waki OOOnyango Otieno AVAlnashir Visram

393 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed it will not review facts or sentence severity on a second appeal, dismissing Joseph Etabo's conviction appeal entirely.

What this practically means

Executive summary

This was a second appeal to the Court of Appeal at Eldoret by Joseph Etabo, an unrepresented appellant, against the decision of Ochieng, J of the High Court at Kitale dated 5th December 2007 in H.C. Cr. A No. 91 of 2006, which had dismissed the appellant's first appeal against both conviction and sentence. The appellant had been convicted on his own plea of guilty of attempted rape contrary to section 141 of the Penal Code and sentenced to 20 years imprisonment by the Chief Magistrate at Kitale on 29th September 2006. Before the Court of Appeal, the appellant raised four home-made grounds asserting that he pleaded guilty under difficult circumstances and mental torture, that he was confused, that he did not commit the offence, and seeking leniency and a fair trial. The court, comprising Waki, Onyango Otieno and Visram, JJA, held that by dint of section 361 of the Criminal Procedure Code a second appeal is confined to matters of law only. The grounds, being factual, could not succeed; the superior court had already confirmed the conviction as safe, and the conviction rested on the appellant's own plea of guilty. On sentence, the court reiterated that severity of sentence is not a matter within its jurisdiction on second appeal unless the sentence was unlawful, which was not the case here. The appeal was accordingly dismissed in its entirety on 29th May 2009. No costs order was made and no authorities were cited in the judgment.

Key legal issues

Scope of a second appeal under section 361 of the Criminal Procedure Code

Holding

The appeal was confined to matters of law; the home-made grounds were factual and could not found a successful second appeal, and the conviction on a plea of guilty was safe.

Reasoning

The court observed that the appellant's grounds were 'based on facts, not law' and were almost identical to those raised in the first appeal, which the superior court had already considered and dismissed. Since the conviction rested on the appellant's own plea of guilty, both lower courts reached the correct conclusion and there was no question of law capable of disturbing the result.

p. 1

Jurisdiction over sentence on second appeal

Holding

Severity of sentence cannot be reviewed on second appeal; only an unlawful sentence is open to interference, and the 20-year sentence was not unlawful.

Reasoning

The court reiterated that in a second appeal the consideration of severity of sentence falls outside its jurisdiction unless the sentence imposed was unlawful. Finding no unlawfulness in the 20-year term imposed by the Chief Magistrate on the plea of guilty, the court held the sentence unimpeachable and the appeal without merit.

p. 2

Legal principles established

On a second appeal, the Court of Appeal is confined to matters of law only and will not revisit findings of fact.
In a second appeal, the severity of a lawful sentence is not a matter within the jurisdiction of the Court of Appeal; only the lawfulness of the sentence may be examined.

Court orders

1.Appeal dismissed in its entirety

Authorities

Legislation

Penal Codesection 141
Criminal Procedure Codesection 361

On appeal from: High Court of Kenya at Kitale; H. C. Cr. A No. 91 of 2006
Jurisdiction invoked: Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Joseph Etabo v Republic [2009] KECA 269 (KLR)", Case Analysis (2009). Criminal Appeal 283 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/269/eng@2009-05-29

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