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Court of AppealPartially AllowedCriminal Appeal No. 94 of 2014· [2014] KECA 320 (KLR)

Musyeki Lemoya v Republic

Court of Appeal of Kenya
10 October 2014
PWP.N. WakiJMJ.W. MweraAMA.K. Murgor
1,677 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a prisoner's 14-year sentence to 11 years because courts failed to credit his three years in custody before sentencing.

What this practically means

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Executive summary

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The appellant was convicted by the Makadara Principal Magistrate's Court of an unnatural offence under section 162(a) of the Penal Code and sentenced to 14 years' imprisonment, with an alternative count of committing an indecent act with a child under section 11(1) of the Sexual Offences Act. On first appeal, the High Court (Achode, J.) set aside the conviction on the main count because the Penal Code provision had been repealed by the Sexual Offences Act, convicted on the alternative count, and retained the 14-year sentence. Before the Court of Appeal (Waki, Mwera and Murgor, JJ.A.), the appellant, appearing in person, challenged only the sentence as excessive and asked that the roughly three years he had spent in custody during trial be factored into the sentence. The Court acknowledged that under section 361(1)(a) of the Criminal Procedure Code it has no jurisdiction to entertain second appeals on the severity of sentence, which is a matter of fact, and that the appeal would ordinarily have been summarily dismissed. However, following established decisions, it held it retained jurisdiction to interfere with the legality of a sentence. It found both courts below had erred in principle: the trial court failed to take account of the pre-sentence custody period as required by the proviso to section 333(2) of the Criminal Procedure Code, and the High Court, having substituted a conviction for the lesser offence carrying a ten-year minimum, failed to revisit the sentence in light of Article 50(2)(p) of the Constitution, which guarantees the least severe prescribed punishment. The Court set aside the 14-year sentence and substituted 11 years; to that extent only the appeal succeeded, and it was otherwise dismissed. No costs order was recorded.

Key legal issues

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01

Jurisdiction of the Court of Appeal on sentence in a second appeal

Holding

The Court has no jurisdiction to entertain an appeal on the severity of sentence as a matter of fact, but retains jurisdiction to interfere where the legality of the sentence is impugned.

Reasoning

Section 361(1)(a) of the Criminal Procedure Code bars second appeals on matters of fact, and severity of sentence is classified as a matter of fact. However, the Court has consistently held that it may interfere with the legality of a sentence if that legality is questioned on second appeal, as stated in Amolo v Republic, Fred Michael Bwayo v Republic and Lazaro Kundu Simiyu v Republic. The appellant's submission on the unaccounted pre-sentence custody period raised the legality of the sentence, engaging that jurisdiction.

p. 2
02

Failure to take pre-sentence custody into account

Holding

Both courts below erred in principle by failing to consider the roughly three years the appellant spent in custody during trial, contrary to section 333(2) of the Criminal Procedure Code.

Reasoning

The proviso to section 333(2) mandatorily requires that a sentence take account of any period the convicted person was held in custody prior to sentencing. The trial court imposed 14 years without considering the three years spent in custody, and the High Court did not revisit the sentence. That omission amounted to an error in principle entitling the Court of Appeal to interfere with the sentence notwithstanding the bar on fact-based second appeals.

p. 3
03

Sentencing where the offence of conviction changes on appeal

Holding

The High Court erred in retaining the 14-year sentence without directing its mind to the changed nature of the offence (from carnal knowledge under the repealed Penal Code provision to indecent act with a child under section 11(1) of the Sexual Offences Act) and to the accused's constitutional right to the least severe prescribed punishment.

Reasoning

On first appeal the High Court set aside the conviction on the main count under the repealed Penal Code provision and convicted on the alternative count under section 11(1) of the Sexual Offences Act, which carries a minimum of ten years. Yet it simply retained the 14-year term without reconsidering the sentence in light of the altered offence and the mitigating circumstances. Article 50(2)(p) of the Constitution, in force at the time of the first appeal, guarantees the benefit of the least severe prescribed punishment where the prescribed punishment has changed between the offence and sentencing.

p. 3

Legal principles established

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  • A second appeal to the Court of Appeal is confined to matters of law; severity of sentence is a matter of fact under section 361(1)(a) of the Criminal Procedure Code, but the Court retains jurisdiction to interfere with the legality of a sentence where it is called into question.
  • Where an accused person has been held in custody prior to sentence, the sentence imposed must take account of the period spent in custody, as required by the proviso to section 333(2) of the Criminal Procedure Code.
  • Where the prescribed punishment for an offence has changed between the time of the offence and the time of sentencing, the accused is entitled to the benefit of the least severe of the prescribed punishments under Article 50(2)(p) of the Constitution.

Court orders

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  1. 1.Sentence of 14 years imprisonment set aside and substituted with a sentence of 11 years imprisonment
  2. 2.Appeal dismissed to the extent that it did not succeed on sentence reduction
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 444 of 2010
Jurisdiction invoked
Section 361(1) 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, "Musyeki Lemoya v Republic", Case Analysis (2014). Criminal Appeal No. 94 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/320/eng@2014-10-10

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