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Court of AppealDismissedCriminal Appeal No. 144 of 2013

Josphat Mburu Kariuki v Republic

Court of Appeal
18 December 2014
PKP. O. KiageSKS. Gatembu KairuAMA. K. Murgor
612 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 ten-year sentence stands.

What this practically means

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Executive summary

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The appellant was convicted on 18th October 2011 for attempted murder after he allegedly removed a window pane of a dwelling house at Kenol Trading Centre in Muranga County, poured a highly inflammable liquid into the house and set it alight while Leah Wairimu Muthoni and her husband were sleeping. The complainant sustained 18-20 degree burns, was hospitalised for over a year, and lost her house. The appellant was sentenced to ten years' imprisonment. He appealed to the High Court, where he withdrew his appeal against conviction and pursued only his appeal against sentence, contending that the sentence was harsh and excessive and that his mitigation was not considered. Achode, J rejected that appeal, observing that the appellant was not remorseful for the suffering he caused. Before the Court of Appeal, the appellant filed written submissions titled 'mitigation grounds of appeal' urging that he had been reformed through correctional programmes and had acquired prison skills, and asking for a reduced sentence. The State, through Mr. O. J. Omondi, Senior Assistant Director of Public Prosecutions, opposed, submitting that severity of sentence cannot be canvassed on a second appeal under section 361 of the Criminal Procedure Code. The Court agreed, holding that under section 361(1)(a) severity of sentence is a matter of fact that cannot be entertained on a second appeal, that there was no suggestion the sentence was illegal, and that the sentence was lawful. The appellant's mitigation was declared improperly before the Court and dismissed. The High Court's dismissal of the sentence appeal was thereby affirmed.

Key legal issues

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Entertainment of severity of sentence on a second appeal

Holding

The Court has no jurisdiction on a second appeal to consider the severity of a lawful sentence, as sentence severity is a matter of fact within section 361(1)(a) of the Criminal Procedure Code.

Reasoning

Section 361(1)(a) of the Criminal Procedure Code declares severity of sentence to be a matter of fact, and on second appeals the Court is confined to matters of law. The State's counsel relied on this limitation, and the Court agreed. The appellant did not contend that the sentence was illegal; indeed the Court found it lawful. His mitigation seeking a reduced sentence was therefore improperly before the Court and had to be dismissed.

p. 2

Legal principles established

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  • On a second appeal under section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal cannot entertain an appeal on the severity of sentence, which is declared to be a matter of fact, unless the sentence is illegal or unlawful

Court orders

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  1. 1.The appellant's mitigation is improperly before the Court and is dismissed
On appeal from
High Court of Kenya at Nairobi
H.CCRA. No. 320 of 2011
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code

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, "Josphat Mburu Kariuki v Republic", Case Analysis (2014). Criminal Appeal No. 144 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/160/eng@2014-12-18

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