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 No. 7 of 2010· [2011] KECA 232 (KLR)

Solomon Onyango Konde v Republic

Court of Appeal of Kenya
23 June 2011
ROR.S.C. OmoloAVAlnashir VisramJNJ. G. Nyamu
636 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 second appeal because sentence severity is a question of fact, not law.

What this practically means

#

Executive summary

#
The appellant was convicted on his own plea of guilty by the Senior Resident Magistrate's Court at Bondo on ten counts of stealing, forgery, uttering a false document, obtaining by false pretences and handling stolen property, and sentenced to three years' imprisonment on each count, concurrent. The convictions arose from his use of a stolen wallet containing a complainant's ID and ATM cards to withdraw money from the complainant's KCB account. On first appeal, the High Court (Mwera, J) held the plea properly taken, reduced some sentences to two years, but directed some sentences to run consecutively, producing an effective seven-year term. On second appeal, appearing in person, the appellant abandoned his grounds on conviction and argued only that the sentence was harsh and should be reduced. The Court of Appeal (Omolo, Visram and Nyamu, JJ.A), in a single judgment of the court, agreed with the Assistant Director of Public Prosecutions that no appeal lay under section 361 of the Criminal Procedure Code: a second appeal lies only on matters of law, and severity of sentence is a matter of fact. Noting that the sentences ordered to run consecutively involved offences committed on different dates, the court held it had no jurisdiction to interfere and dismissed the appeal, leaving the superior court's sentence intact. The binding proposition for lower courts is that second appeals cannot be founded on the severity of sentence, which is a question of fact.

Key legal issues

#
01

Whether the Court of Appeal has jurisdiction to entertain a second appeal against the severity of sentence

Holding

The Court has no jurisdiction; a second appeal lies only on matters of law and severity of sentence is a matter of fact

Reasoning

The appellant's first appeal to the High Court resulted in lawful sentences. On second appeal, section 361 of the Criminal Procedure Code confines this Court to matters of law. Because the appellant's complaint was solely that the sentence was harsh and should be reduced, the appeal fell outside the Court's appellate jurisdiction. The sentences ordered to run consecutively involved offences committed on different dates, so there was no error of law to correct.

p. 2

Legal principles established

#
  • A second appeal to the Court of Appeal lies only on matters of law, not on facts, and severity of sentence is a matter of fact on which the Court has no jurisdiction

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.The sentence imposed by the superior court shall remain
On appeal from
High Court of Kenya at Kisumu
H.C. Cr. A. No. 24 of 2009
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeals lie only on matters of law)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Solomon Onyango Konde v Republic", Case Analysis (2011). Criminal Appeal No. 7 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/232/eng@2011-06-23

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