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Court of AppealDismissedCriminal Appeal 352 of 2007

Julius Maina Kariuki v Republic [2009] KECA 330 (KLR)

Court of Appeal of Kenya
22 May 2009
Philip Kiptoo TunoiP.K. TunoiPWP.N. WakiJNJ.G. Nyamu
782 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it will only hear legal arguments on a second criminal appeal — complaints about a harsh sentence won't succeed.

What this practically means

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Executive summary

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The appellant was convicted by the Senior Resident Magistrate's Court at Kigumo after the trial court substituted the main charge of rape (contrary to section 140 of the Penal Code) with attempted rape (contrary to section 141), sentencing him to ten years imprisonment with hard labour. His first appeal to the High Court at Nyeri (Makhandia, J.) against both conviction and sentence was dismissed, the superior court having independently analysed and evaluated the evidence afresh and reached the same findings of fact as the trial court. He then filed a second appeal in the Court of Appeal at Nyeri raising seven grounds, but at the hearing elected to pursue only the ground of severity of sentence. The Court, comprising Tunoi, Waki and Nyamu, JJ.A, upheld the State's objection that the grounds were factual. Restating its role on a second appeal by reference to section 361 of the Criminal Procedure Act and its precedents in Obanda v Republic and Njoroge v Republic, the Court held that it is concerned only with points of law, is bound by concurrent findings of fact of the lower courts unless shown not to be based on evidence, and cannot interfere with a lawful sentence since severity of sentence is a matter of fact. Finding no ground of law, the Court dismissed the appeal in its entirety. The judgment reaffirms the settled principle limiting the scope of second criminal appeals in Kenya.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal, on a second appeal, can entertain grounds based on facts rather than law
  2. 2.Whether the Court could interfere with the sentence imposed on the appellant

Key legal issues

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01

Scope of a second appeal to the Court of Appeal in criminal matters

Holding

A second appeal lies only on matters of law; the Court is bound by concurrent findings of fact of the two lower courts unless those findings are shown not to be based on evidence.

Reasoning

The Court invoked section 361 of the Criminal Procedure Act and its prior decision in Obanda v Republic to restate that its jurisdiction on a second appeal is confined to questions of law. The appellant pursued only the ground of severity of sentence, which the statute classifies as a matter of fact. Since he identified no error of law and the superior court had independently re-evaluated the evidence and reached the same factual conclusions, there was no basis for interference.

p. 2
02

Whether the Court may interfere with a lawful sentence on appeal

Holding

The Court cannot interfere with a lawful sentence; severity of sentence being a matter of fact, it is outside the Court's jurisdiction on a second appeal.

Reasoning

State Counsel submitted that the Court can interfere with sentence only if it was unlawful. The Court accepted this, noting that section 361 of the Criminal Procedure Act classifies severity of sentence as a matter of fact. Because the ten-year sentence imposed under section 141 of the Penal Code was lawful and the appellant raised no point of law, the sentencing ground necessarily failed and the appeal was dismissed.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and is bound by concurrent findings of fact of the lower courts unless those findings are shown not to be based on evidence.
  • Severity of sentence is a matter of fact under section 361 of the Criminal Procedure Act, and the Court of Appeal will not interfere with a lawful sentence.

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
PW
majority
JN
majority
On appeal from
High Court of Kenya at Nyeri
H.C.CR.A. No. 216 of 2005
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361 of the Criminal Procedure Act (as referenced in the judgment), confined to matters of law

Relief refused

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Reduction of the ten-year imprisonment sentence on the ground of severity

Severity of sentence is a matter of fact under section 361 of the Criminal Procedure Act and the sentence was lawful; the Court cannot interfere with a lawful sentence on a second appeal

p. 2

Costs

No costs order is recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

On a second appeal the Court of Appeal is only concerned with points of law. On such an appeal, the court was bound by the concurrent findings of fact made by the lower courts unless those findings were shown not to be based on evidence.
p. 2Scope of second criminal appeal
Section 361 of the Criminal Procedure Act, provides that severity of sentence is a matter of fact. This Court would not therefore be entitled to interfere with a lawful sentence.
p. 2Interference with sentence
The appellant has not shown any grounds of law in the appeal for consideration by this Court. The appeal is hereby dismissed.
p. 2Final orders - dismissal of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Julius Maina Kariuki v Republic [2009] KECA 330 (KLR)", Case Analysis (2009). Criminal Appeal 352 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/330/eng@2009-05-22

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