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Court of AppealPartially AllowedCriminal Appeal (as stated in judgment: second and final appeal heard at Eldoret, 20th April 2009)· [2009] KECA 440 (KLR)

Omuse v Republic (Criminal Appeal 344 of 2006) [2009] KECA 440 (KLR)

Court of Appeal of Kenya
29 May 2009
EOE.O. O'KubasuPWP.N. WakiJOJ.W. Onyango Otieno
1,421 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a first offender because it was unfair that he got prison while his co-accused, a repeat offender, only paid a fine.

What this practically means

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Executive summary

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The appellant, Kennedy Indiema Omuse, was jointly charged with two others before the Senior Principal Magistrate's Court at Kitale on five counts of burglary, breaking into buildings and stealing stock contrary to the Penal Code. One co-accused, Peter Onzere Tovoi, a person with a previous conviction, pleaded guilty first and was fined KShs.10,000 on each count in default 12 months. The appellant, a first offender, subsequently pleaded guilty to all five counts but was sentenced to five years' imprisonment on three counts and seven years on the fifth, running concurrently - a total of seven years. The High Court (W. Karanja, J.) dismissed his first appeal against sentence on 4th December 2006, holding he got the sentence he deserved. On second appeal, the Court of Appeal (O'Kubasu, Waki and Onyango Otieno, JJA) held that although section 361(1) of the Criminal Procedure Code ousts its jurisdiction over appeals on severity of sentence, the complaint before it concerned the legality of the sentence: it was wrong in principle for a first offender to receive a total of seven years' imprisonment when his co-accused with a prior conviction was fined for the same offences, absent good reason. Following Macharia v R, Marando v R and Amolo v R, the Court allowed the appeal to the extent of setting aside the sentence and substituting a sentence equivalent to time already served, resulting in the appellant's immediate release unless otherwise lawfully held. The High Court's dismissal of the first appeal was otherwise not disturbed.

Key legal issues

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01

Whether the disparity in sentences between the appellant (first offender sentenced to a total of 7 years' imprisonment) and his co-accused (repeat offender fined) disclosed an error of principle justifying appellate interference

Holding

Yes. The disparity was wrong in principle; the appellant, a first offender of arguably better character, received a far harsher sentence than his co-accused with a previous conviction for the same offences, with no good reason. This was a legality question the Court could correct.

Reasoning

The Court distinguished severity (excluded by section 361(1) CPC) from legality of sentence, which it retains jurisdiction over. Citing Marando v R and Macharia v R, it held that a first offender should not ordinarily receive a heavier sentence than a repeat offender convicted of the same offences. The trial magistrate acted on wrong principle in imposing 7 years while the co-accused was fined, warranting correction by substituting the sentence with time served.

p. 5
02

Scope of the Court of Appeal's jurisdiction on a second appeal against sentence

Holding

The Court has no jurisdiction to entertain appeals on the severity of sentence under section 361(1) of the Criminal Procedure Code, but may intervene where the sentence is illegal or imposed on wrong principles, including restoring or correcting such a sentence.

Reasoning

Relying on Amolo v R, the Court confirmed that correcting a sentence altered or imposed on wrong principles does not infringe section 361(1)(a). The general non-interference principle from Ogola s/o Owuor and James v R applies to discretionary sentencing, but does not bar intervention where the sentencing court acted on a wrong principle or overlooked material factors, as occurred here through the unexplained disparity.

p. 4

Legal principles established

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  • It is wrong in principle to impose different sentences on two people convicted of the same offences except for good reason; disparity between co-accused without good reason is a question of legality, not severity, and justifies appellate interference notwithstanding section 361(1) of the Criminal Procedure Code
  • An appellate court has jurisdiction to restore or correct a sentence that was imposed on wrong principles, and doing so does not infringe section 361(1)(a) of the Criminal Procedure Code
  • A sentence must be commensurate with the moral blameworthiness of the offender, and a court must consider the facts and circumstances of the case in their entirety before settling on a sentence

Court orders

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  1. 1.Appeal allowed to the extent of setting aside the sentence imposed by the trial magistrate and substituted with a sentence equivalent to the period already served by the appellant
  2. 2.Appellant to be released from prison unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 304(b)
  • Penal Codesection 279(b)
  • Penal Codesection 306(a)
  • Penal Codesection 278
  • Penal Codesection 35(1)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 361(1)(a)

Cases cited (7)

  • Macharia v R.
    [2003] 2 E.A. 559
  • Ogola s/o Owuor
    (1954) EACA 270
  • JAMES v R.
    (1950) 18 EACA 147
  • R. v Shershawsky
    (1912) CCA 28 TLR 263
  • Ambani v R.
    (1990) KLR 161
  • Marando v R.
    [1980] Kenya L.R. 114
  • Amolo v R.
    [1991] KLR 392
On appeal from
High Court
Jurisdiction invoked
Second and final appeal under section 361(1) of the Criminal Procedure Code, which limits this Court's jurisdiction on appeals on severity of sentence but not on legality of sentence

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omuse v Republic (Criminal Appeal 344 of 2006) [2009] KECA 440 (KLR)", Case Analysis (2009). Criminal Appeal (as stated in judgment: second and final appeal heard at Eldoret, 20th April 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/440/eng@2009-05-29

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