Tarcisio Chege Kihia v Republic [2014] KECA 333 (KLR)

Court of Appeal of Kenya

10 October 2014

PKP. Kihara Kariuki PKP. O. Kiage AMA. K. Murgor

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The bottom line

Kenya's Court of Appeal refused to reduce a ten-year sentence because, in a second appeal, it can only hear legal arguments, not complaints about how harsh a sentence is.

What this practically means

Executive summary

The appellant, unrepresented, lodged before the Court of Appeal a document titled 'MITIGATION' in which he recounted his conviction for indecently assaulting a child contrary to Section 11(1) of the Sexual Offences Act and his sentence of ten years imprisonment. He described himself as a reformed first offender who had acquired technical skills in prison and prayed for a non-custodial sentence, expressly limiting his plea to the sentence only. His first appeal against conviction and sentence had been dismissed by the High Court (Gitumbi J) on 15 November 2013. The Court of Appeal (Kihara Kariuki, Kiage and Murgor JJ.A) held that, assuming the document amounted to an appeal, it was a second appeal governed by Section 361 of the Criminal Procedure Code, which confines such appeals to matters of law and expressly treats severity of sentence as a matter of fact. That provision is jurisdictional and restrictive. Since the appeal was exclusively against the severity of the sentence, the Court was bereft of jurisdiction to interfere; only a challenge to the legality of the sentence or to conviction would have opened the door. Citing Joseph Kiplimo vs R, the Court found itself powerless to assist the appellant notwithstanding his reform, and dismissed the appeal on 10 October 2014. No costs order was made.

Key legal issues

Jurisdiction over second appeals against severity of sentence

Holding

The Court of Appeal lacks jurisdiction to entertain a second appeal against sentence where the complaint is solely its severity, since severity of sentence is a matter of fact excluded by Section 361(1) of the Criminal Procedure Code.

Reasoning

Section 361(1) permits a party to appeal from a decision of the High Court in its appellate jurisdiction only on a matter of law, and expressly excludes appeals on matters of fact, stating that severity of sentence is a matter of fact. The provision is jurisdictional, so the Court cannot entertain the appeal however meritorious the appellant's personal circumstances may appear.

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Exception where sentence is challenged as illegal

Holding

The Court may intervene in a second appeal where the sentence is challenged as illegal, since illegality of sentence is a matter of law.

Reasoning

The Court observed that had the appeal been against conviction or had there been a challenge to the legality of the sentence, the matter would have been one of law within its jurisdiction. The appellant's document was purely a plea for leniency based on reform and remorse, not a contention that the sentence was illegal, so the exception did not assist him.

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Legal principles established

Section 361 of the Criminal Procedure Code confines the Court of Appeal in criminal second appeals to matters of law only; severity of sentence is a matter of fact and no appeal lies against it.

Court orders

1.The appeal is dismissed

Authorities

Legislation

Criminal Procedure CodeSection 361(1)(a)
Sexual Offences ActSection 11(1)

Cases cited (1)

Joseph Kiplimo vs R
[2011] eKLR (Criminal Appeal No. 416 of 2010)

On appeal from: High Court of Kenya at Nairobi; HC. CR. A. 453 of 2010
Jurisdiction invoked: Section 361 of the Criminal Procedure Code (second appeals to the Court of Appeal limited to matters of law)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Tarcisio Chege Kihia v Republic [2014] KECA 333 (KLR)", Case Analysis (2014). Criminal Appeal No. 89 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/333/eng@2014-10-10

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