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Court of AppealDismissedCriminal Appeal No. 500 of 2010· [2013] KECA 4 (KLR)

Seif Hamed Abdallah v Republic [2013] KECA 4 (KLR)

Court of Appeal of Kenya
23 May 2013
1,439 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a lawful sentence on a second appeal, so the robbery death sentence (already commuted) stood.

What this practically means

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Executive summary

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The appellant was convicted by the Principal Magistrate at Mombasa on 28th November 2005 of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. The complainant was attacked on Tamarind beach in Mombasa, struck on the head with a bottle and robbed of Kshs.200/- and a camera; members of the public arrested the appellant. His first appeal against conviction and sentence was dismissed by the High Court at Mombasa (Ibrahim and Odero, JJ.) on 19th October 2010, which found clear, positive and reliable identification corroborated by a second witness. On this second appeal, counsel for the appellant abandoned the appeal on conviction and pursued sentence only, relying on Godfrey Ngotho Mutiso v Republic to argue that the death sentence under section 296(2) was a maximum rather than mandatory sentence and was manifestly excessive given the trivial amount stolen. The State objected that sentence is a matter of fact under section 361 of the Criminal Procedure Code, outside the Court's second-appeal jurisdiction. The Court held that it may not re-examine the severity of a lawful sentence on second appeal; only legality of sentence is open under section 361(1)(b), and counsel had expressly conceded the sentence was not illegal. It further noted the sentence had been commuted to life imprisonment, removing the death penalty which was the cornerstone of the appeal. The Court of Appeal (Githinji, Makhandia and Sichale, JJ.A.) unanimously dismissed the appeal on 23rd May 2013. The High Court's dismissal of the first appeal stands affirmed.

Key legal issues

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01

Scope of second-appeal jurisdiction over sentence

Holding

The Court has no jurisdiction over the severity of a lawful sentence on second appeal; sentence is a matter of fact under section 361(1)(a), and severity is not an issue of law under section 361(1)(b). Only legality of sentence may be raised.

Reasoning

Section 361(1)(a) of the Criminal Procedure Code declares sentence a matter of fact, barring second appeals on that basis. Sub-section (b) permits challenge where legality of sentence is at issue. Counsel for the appellant expressly abandoned the conviction appeal and did not contend that the death sentence was illegal, only that it was excessive given the minor loss of Kshs.200/-. The complaint was therefore one of severity, not legality, and fell outside the Court's jurisdiction.

p. 3
02

Whether the death sentence under section 296(2) of the Penal Code is mandatory or discretionary

Holding

The Court declined to determine this question because counsel for the appellant did not submit that the sentence was illegal; he conceded the Constitution upholds the death sentence and complained only of severity.

Reasoning

Counsel relied on Godfrey Ngotho Mutiso v Republic to argue the death penalty under section 296(2) was a maximum, not mandatory, sentence. However, before this Court counsel expressly stated that the spirit of the Constitution upholds the death sentence and did not assert illegality. The Court therefore held the authority irrelevant to the severity complaint it was asked to entertain, and did not itself rule on the mandatory nature of the penalty.

p. 3
03

Effect of commutation of the death sentence to life imprisonment

Holding

Since the appellant's sentence had been commuted to life imprisonment by Presidential decree, he no longer faced the death penalty which was the cornerstone of his appeal on sentence, rendering the appeal without merit.

Reasoning

It was common ground that the sentence had been commuted to life imprisonment. Counsel conceded this. The Court treated the commutation as removing the practical stake of the appeal on sentence, observing that the appellant was no longer facing the death penalty which underpinned the appeal. Together with the jurisdictional bar on severity complaints, this disposed of the appeal.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal has no jurisdiction to re-examine the severity of a lawful sentence; only the legality of a sentence is open to challenge under section 361(1)(b) of the Criminal Procedure Code.
  • Where the legality of a sentence is open to challenge, the Court of Appeal on second appeal has jurisdiction to re-open the matter.

Court orders

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  1. 1.The appeal on sentence is dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361
  • Criminal Procedure Codesection 361(1)(a)
  • Criminal Procedure Codesection 361(1)(b)

Cases cited (1)

  • Godfrey Ngotho Mutiso vs Republic
    Cr.A. No. 17 of 2008 (UR)
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 263 of 2005
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal)

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, "Seif Hamed Abdallah v Republic [2013] KECA 4 (KLR)", Case Analysis (2013). Criminal Appeal No. 500 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/4/eng@2013-05-23

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