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Court of AppealDismissedCriminal Appeal No. 51 of 2010

Michael Murasia Alias Chotoi David v Republic [2011] KECA 384 (KLR)

Court of Appeal
15 February 2011
548 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, so challenging severity must happen at trial or first appeal.

What this practically means

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Executive summary

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The appellant was convicted before the Principal Magistrate's Court at Kapenguria on two counts - stealing from the person contrary to section 279 (a) of the Penal Code and malicious damage to property contrary to section 339 (1) - after pleading guilty, and was sentenced to concurrent terms of 7 and 3 years imprisonment. His first appeal to the High Court at Eldoret (Ombija, J.) was summarily rejected under section 352 (2) of the Criminal Procedure Code on 16 February 2010. This second appeal was confined to severity of sentence; the appellant did not challenge his conviction. Counsel for the Republic raised the bar in section 361 (1) (a) of the Criminal Procedure Code, which prohibits a second appeal against severity of sentence, contending the Court lacked jurisdiction. The appellant countered that he enjoyed a constitutional right of appeal. The Court of Appeal (Gicheru, C.J., Bosire and Onyango Otieno, JJ.A.) held that the High Court had properly found the appeal frivolous since the sentences were lawful and not manifestly excessive, and that in any event the Court's powers were circumscribed by statute. It affirmed the summary rejection and dismissed the appeal for want of jurisdiction, holding that the constitutional right of appeal could not override the express statutory limitation.

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 has jurisdiction to entertain a second appeal confined to the severity of sentence
  2. 2.Whether the sentences imposed were manifestly excessive

Key legal issues

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Jurisdiction over second appeals on sentence

Holding

A second appeal against severity of sentence cannot be entertained; the Court's power is circumscribed by statute.

Reasoning

The appellant's appeal was confined to sentence, conviction not being challenged. Section 361 (1) (a) of the Criminal Procedure Code expressly bars second appeals against severity of sentence. The bar is statutory, so the appellant's invocation of a constitutional right of appeal cannot confer jurisdiction on a court whose powers are limited by statute. The High Court had properly found the appeal frivolous under section 352 (2).

p. 1

Legal principles established

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  • The Court of Appeal has no jurisdiction to entertain a second appeal against the severity of sentence.
  • A superior court may summarily dismiss a first appeal where the sentence is within the law and not manifestly excessive.

Court orders

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  1. 1.Appeal dismissed for want of jurisdiction

The bench

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

majority

Wrote the judgment

majority
On appeal from
High Court of Kenya at Eldoret
H.C.CR.A. No. 61 of 2009
Jurisdiction invoked
Second appeal under the Criminal Procedure Code; jurisdiction barred by section 361 (1) (a)

Relief refused

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Reduction of the concurrent sentences of 7 years and 3 years imprisonment

No second appeal lies against severity of sentence under section 361 (1) (a) of the Criminal Procedure Code

Costs

No order as to costs 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.

Besides this being a second appeal, we would not have jurisdiction to entertain it in view of the clear provisions of section 361 (1) (a) of the Criminal Procedure Code.
p. 1Jurisdiction - bar on second appeals against sentence
As the power of this Court is circumscribed by statute our hands are tied, and we cannot but dismiss the appellant’s appeal for want of jurisdiction. It is so ordered.
p. 1Final orders - dismissal for want of jurisdiction

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, "Michael Murasia Alias Chotoi David v Republic [2011] KECA 384 (KLR)", Case Analysis (2011). Criminal Appeal No. 51 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/384/eng@2011-02-15

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