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Court of AppealDismissedCriminal Appeal No. 25 of 2015

Samuel Murunga v Republic [2015] KECA 565 (KLR)

Court of Appeal of Kenya
3 July 2015
JMJ. W. MWERAFSF. SICHALEJMJ. MOHAMMED
871 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 prison sentence on a second appeal; only questions of law qualify under section 361.

What this practically means

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Executive summary

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The appellant, Samuel Murunga, was convicted of defilement contrary to section 8(2) of the Sexual Offences Act and sentenced to ten years' imprisonment by the Chief Magistrate's Court at Kiambu. The High Court (Achode, J.) on first appeal convicted him on the alternative charge of committing an indecent act under section 11(1) but retained the prison term. Rather than appeal further on the merits, the appellant filed a 'MEMORANDUM OF MITIGATION' in the Court of Appeal, accepting the decisions of the two courts below and pleading remorse, reformation, theological and vocational training in prison, and that he had served over a third of his sentence. He asked the Court to assist him, reportedly on the advice of the Committee for the Prerogative of Mercy. The Court informed him that under section 361 of the Criminal Procedure Code a second appeal lies only on points of law; severity of sentence is a matter of fact, and an appeal against sentence is barred unless the sentence was enhanced by the High Court or the subordinate court lacked power to pass it. Neither exception applied. Following its own decision in Simon Karanja Kiarie v Republic (Cr.A. 142 of 2013), the Court held it lacked jurisdiction to interfere with a lawful sentence on grounds of severity alone and dismissed the 'appeal' as incompetent. The judgment binds subordinate courts and the High Court on the limits of second appeals against sentence. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal, on a second appeal, has jurisdiction to entertain a plea in mitigation of sentence where the appellant accepts the decisions of the two courts below
  2. 2.Whether an appeal confined to severity of sentence, where the sentence was not enhanced by the High Court, is competent under section 361(1) of the Criminal Procedure Code

Key legal issues

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01

Jurisdiction of the Court of Appeal over a second appeal grounded purely in mitigation of sentence

Holding

The Court lacks jurisdiction; an appeal based only on severity of sentence is a matter of fact and therefore incompetent under section 361(1)

Reasoning

Section 361(1) of the Criminal Procedure Code permits a second appeal only on a matter of law. Severity of sentence is expressly designated a matter of fact, and an appeal against sentence is excluded unless the High Court enhanced the sentence or the subordinate court had no power under section 7 to pass it. Here the sentence was neither enhanced nor passed without power, and the appellant accepted the decisions below, seeking only mitigation. Following Simon Karanja Kiarie v Republic, the Court dismissed the appeal as incompetent.

p. 2
02

Whether the filing headed 'MEMORANDUM OF MITIGATION' could be entertained as an appeal

Holding

It could not; styled as an appeal, it fell to be tested against section 361 and failed that test, being incompetent

Reasoning

The matter was listed as an appeal, so section 361 of the Criminal Procedure Code applied. The appellant had accepted the decisions of both courts below and sought only to be heard in mitigation. Because severity of sentence is a matter of fact and the sentence was not enhanced, the document disclosed no appeal on a point of law. Relying on the decision in Simon Karanja Kiarie v Republic, the Court held the 'appeal' did not lie in law and dismissed it.

p. 2

Legal principles established

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  • On a second appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal may only entertain matters of law; severity of sentence is a matter of fact, and an appeal against sentence lies only where the sentence was enhanced by the High Court or the subordinate court lacked power to pass it
  • Where an appellant does not challenge the legality of a lawful sentence but only its severity, the Court lacks jurisdiction to interfere with that sentence and must dismiss the matter

Court orders

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  1. 1.The 'appeal' (memorandum of mitigation) dismissed as incompetent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority
FS
majority
JM
majority
On appeal from
High Court of Kenya at Nairobi
HC.CR.A. No.448 of 2010
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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Hearing on mitigation of sentence and reduction of sentence/setting the appellant at liberty

Section 361(1) of the Criminal Procedure Code confines a second appeal to matters of law; severity of sentence is a matter of fact, and an appeal against sentence lies only where the High Court enhanced the sentence or the subordinate court lacked power to pass it

p. 2

Costs

No costs order made

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the same vein, we dismiss this “appeal” on account of being incompetent. It does not lie in law.
p. 2Final orders - dismissal for want of jurisdiction
“The appellant herein in not challenging legality of the sentence that was meted out. He is merely arguing that the same was severe and urges this Court to reduce it to the period already served. This Court has severally held that in such an instance, it lacks jurisdiction to interfere with a lawful sentence.
p. 2No jurisdiction to interfere with a lawful sentence on grounds of severity
“Jurisdiction is the bedrock of any court decision and without it a court has no power to do anything, other than to dismiss the matter before it, as we hereby do in respect of this appeal.”
p. 2Jurisdiction as foundational
a. on a matter of fact, and severity of sentence is a matter of fact; or b. against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.
p. 2Scope of second appeals under section 361(1) Criminal Procedure Code

Issues in the judgment

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minor

The High Court judge's name is spelled inconsistently within the judgment: the headnote reads 'Achode, J.' while the body refers to 'Acholde, J.'

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, "Samuel Murunga v Republic [2015] KECA 565 (KLR)", Case Analysis (2015). Criminal Appeal No. 25 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/565/eng@2015-07-03

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