Ambilinji v Republic (Criminal Appeal 38 of 2013) [2015] KECA 28 (KLR)

Court of Appeal of Kenya

3 July 2015

D.K. Maraga DMD. Musinga AMA.K. Murgor

979 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed it cannot reduce a lawful prison sentence on a second appeal — only the legality of a sentence can be challenged.

What this practically means

Executive summary

The appellant was convicted by the Senior Resident Magistrate's Court at Butali of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to 15 years imprisonment. His first appeal to the High Court at Kakamega (Thuranira Jaden J) against the sentence was dismissed, the conviction and sentence being upheld. He then filed a second appeal to the Court of Appeal at Kisumu seeking reduction of the sentence, contending that the 15-year term was arbitrary, excessive and disproportionate, and that the trial magistrate had failed to take into account his mitigation, including that he was aged 19 years and had been living alone after his parents died. The State opposed, maintaining that the sentence was the minimum stipulated for the offence and that an appeal could lie only on a matter of law. The Court of Appeal, in a single judgment of the court delivered by Maraga, Musinga and Murgor JJ A, held that under section 361(1)(a) of the Criminal Procedure Code, second appeals lie only on matters of law, that the severity of a sentence is a matter of fact, and that an appeal against severity as opposed to legality is not maintainable, following its earlier decision in Paul Tanui v Republic. Satisfied that the sentence was lawful, the Court concluded that it had no jurisdiction to interfere with the lawful sentence of the courts below and dismissed the appeal. The decision binds subordinate courts and the High Court on the limits of second appeals against sentence.

Key legal issues

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

Holding

Under section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal shall not hear an appeal on a matter of fact, and severity of sentence is a matter of fact; only the legality of a sentence, not its severity, is challengeable on a second appeal

Reasoning

The court relied on the express wording of section 361(1)(a), which bars appeals on matters of fact and against sentences except where the sentence has been enhanced by the High Court. Applying its prior decision in Paul Tanui v Republic, the court held that an appeal directed at the severity of a lawful sentence, as opposed to its legality, is not maintainable, and that its jurisdiction is confined to questions of law.

p. 2

Legality of the 15-year sentence imposed under the Sexual Offences Act

Holding

The sentence of 15 years imposed by the trial court and upheld by the High Court was lawful and in accordance with the law

Reasoning

The court noted that the applicable provision stipulated a minimum sentence for defilement of a child within the age bracket of 12 to 15 years, and that the High Court had considered the complainant's age and found the sentence under section 8(4) of the Sexual Offences Act to be lawful. Having found no valid grounds in law to challenge the conviction and sentence, the Court saw no basis to interfere.

p. 2

Legal principles established

Second appeals to the Court of Appeal lie only on matters of law; severity of sentence is a matter of fact and an appeal against it is not maintainable
The Court of Appeal has no jurisdiction to interfere with a lawful sentence of the courts below on a second appeal

Court orders

1.The second appeal against sentence is dismissed
2.It is so ordered

Authorities

Legislation

Sexual Offences Act No. 3 of 2006Section 8(1) as read with section 8(2)
Sexual Offences Act No. 3 of 2006Section 8(4)
Criminal Procedure CodeSection 361(1)(a)

Cases cited (1)

Paul Tanui vs Republic
(2010) eKLR

On appeal from: High Court of Kenya at Kakamega; H.C.CR.A. No. 59 of 2011
Jurisdiction invoked: Section 361(1)(a) of the Criminal Procedure Code (second appeal on a matter of law only)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ambilinji v Republic (Criminal Appeal 38 of 2013) [2015] KECA 28 (KLR)", Case Analysis (2015). Criminal Appeal No. 38 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/28/eng@2015-07-03

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