Abdirizak Mohammed Derow v Republic [2014] KECA 512 (KLR)

Court of Appeal

27 June 2014

D.K. Maraga DMD.K. Musinga KMK. M'Inoti

485 words in judgment

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The bottom line

Kenya's Court of Appeal cannot reduce a legal sentence already confirmed by the High Court, so the appellant must serve his full 20-year term.

What this practically means

Executive summary

The appellant was convicted by the Senior Principal Magistrate's Court at Garissa on his own plea of guilty to defilement contrary to Section 8(1)(3) of the Sexual Offences Act and sentenced to 20 years' imprisonment. His first appeal against sentence to the High Court at Nairobi (Ochieng, J.) was dismissed on 2 March 2011. Acting in person, he filed a notice of appeal to the Court of Appeal but no memorandum of appeal, instead filing a document headed 'MITIGATION'. Before the Court of Appeal (Maraga, Musinga and M'Inoti, JJ.A) he clarified that he was not challenging his conviction or the legality of the sentence but only sought its reduction on the ground that it was harsh, and further complained that, being HIV positive, he was not receiving proper medication in prison. The State, through Ms Murungi, Senior Assistant Director of Public Prosecutions, objected that under Section 361 of the Criminal Procedure Code no appeal lies to the Court of Appeal from a judgment of the High Court on severity of sentence alone. The Court agreed, quoting Section 361(1), which confines second appeals to matters of law and expressly treats severity of sentence as a matter of fact, permitting an appeal against sentence only where the High Court enhanced it or the subordinate court lacked power to impose it. Holding that no appeal could lie against a legal sentence confirmed by the High Court, even if the 'MITIGATION' document were deemed a memorandum of appeal, the Court dismissed the purported appeal, with the consequence that the appellant must serve the full sentence imposed by the trial court. No costs order was made.

Key legal issues

Whether the Court of Appeal may entertain an appeal against severity of sentence

Holding

No appeal lies to the Court of Appeal against the severity of a sentence that is legal, was passed by the trial court and confirmed by the High Court; an appeal lies only on a matter of law or against an enhanced sentence or one passed without power.

Reasoning

Section 361(1) of the Criminal Procedure Code confines second appeals to matters of law, expressly providing that severity of sentence is a matter of fact and that no appeal lies against sentence except where it has been enhanced by the High Court or the subordinate court had no power to pass it. The appellant's grievance was purely the harshness of a lawful 20-year sentence, so the Court lacked jurisdiction notwithstanding his illness.

p. 2

Whether the unrepresented appellant's 'MITIGATION' document could sustain the appeal

Holding

Even if the document headed 'MITIGATION' were deemed a memorandum of appeal, the appeal could not lie as it sought only a reduction of a legal sentence.

Reasoning

The appellant filed a notice of appeal but no memorandum of appeal, instead filing a document headed 'MITIGATION'. The Court was prepared to indulge the unrepresented appellant by deeming that document a memorandum of appeal, but even on that footing the substance of the complaint - harshness of sentence confirmed by the High Court - was barred by Section 361 of the Criminal Procedure Code, so the indulgence could not cure the jurisdictional defect.

p. 2

Legal principles established

Under Section 361 of the Criminal Procedure Code, no appeal lies to the Court of Appeal from a decision of the High Court on the severity of sentence, where the sentence was legal, passed by the trial court and confirmed by the High Court; severity of sentence is a matter of fact.

Court orders

1.The purported appeal is dismissed
2.The appellant shall serve the full sentence as passed by the trial court

Authorities

Legislation

Sexual Offences ActSection 8(1)(3)
Criminal Procedure CodeSection 361(1)
Criminal Procedure CodeSection 7

Cases cited (1)

Desai v Republic
[1971] E.A. 416

On appeal from: High Court at Nairobi; HC. CR.A. No. 327 of 2010
Jurisdiction invoked: Section 361 of the Criminal Procedure Code (which bars appeal to the Court of Appeal against severity of sentence); appeal essentially a plea for sentence reduction

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Abdirizak Mohammed Derow v Republic [2014] KECA 512 (KLR)", Case Analysis (2014). Criminal Appeal No. 92 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/512/eng@2014-06-27

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