Gabrial Barasa Omar v Republic [2013] KECA 403 (KLR)

Court of Appeal of Kenya

30 January 2013

JOJ.W. Onyango Otieno WKW. Karanja

M.K. Koome

1,123 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed it cannot reduce a sentence on a second appeal—severity of sentence is a matter of fact, barred by Section 361 of the Criminal Procedure Code.

What this practically means

Executive summary

This was a second appeal to the Court of Appeal at Eldoret against sentence only, arising from the appellant's conviction by the Senior Principal Magistrate's Court at Kitale on the alternative charge of indecent assault on a girl under sixteen years contrary to Section 144(1) of the Penal Code, for which he received ten years' imprisonment. His first appeal to the High Court at Kitale (Ombija, J) was summarily rejected under Section 352 of the Criminal Procedure Code on 30th July 2009. Before the Court of Appeal the appellant sought reduction of sentence on grounds of being a 63-year-old first offender with family responsibilities and stalled businesses. The State, through Mr. Chirchir, raised a jurisdictional objection: the appeal was a second appeal on sentence only, and no appeal had been preferred against the summary dismissal by the High Court. The Court agreed, holding that under Section 361(1)(a) of the Criminal Procedure Code a second appeal lies only on a matter of law, and that severity of sentence is a matter of fact on which the Court of Appeal may not hear an appeal. It further observed that even assuming the High Court's summary rejection embraced the appeal against sentence, the jurisdictional bar would still apply, and in any event the ten-year sentence was lenient given the nature of the offence and the age of the child. The appeal was dismissed. The judgment was delivered as a single judgment of the whole court, with no separate opinions or dissent.

Key legal issues

Jurisdiction of the Court of Appeal over a second appeal confined to severity of sentence

Holding

The Court had no jurisdiction to entertain the appeal because severity of sentence is a matter of fact, excluded from second appeals by Section 361(1)(a) of the Criminal Procedure Code.

Reasoning

The appellant was convicted of indecent assault and sentenced to ten years' imprisonment. His first appeal was summarily rejected by the High Court under Section 352 of the Criminal Procedure Code, and this second appeal sought only a reduction of sentence. Section 361(1)(a) confines second appeals to matters of law and expressly provides that the Court of Appeal shall not hear an appeal on a matter of fact, severity of sentence being a matter of fact. The appeal therefore could not stand. The Court further observed that no appeal was brought against the summary dismissal itself, and even if the High Court had dismissed the appeal against sentence, the bar would still apply; in any event the sentence was lenient.

p. 2

Legal principles established

On a second appeal under Section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal has no jurisdiction to entertain an appeal on severity of sentence, which is a matter of fact.

Court orders

1.Appeal dismissed for lack of jurisdiction, the appeal being a second appeal against severity of sentence only

On appeal from: High Court of Kenya at Kitale; H.C.CR.A. No. 38 of 2008
Jurisdiction invoked: Section 361(1)(a) of the Criminal Procedure Code (second appeal on matter of fact, including severity of sentence, barred)

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Jonathan Kiplimo v Republic [2018] KECA 539 (KLR)
[2018] KECA 539 (KLR)31 May 2018

Cite this brief

Caselaw, "Gabrial Barasa Omar v Republic [2013] KECA 403 (KLR)", Case Analysis (2013). Criminal Appeal No. 88 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/403/eng@2013-01-30

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