Stephen Chebii Cheboiwo v Republic [2017] KECA 562 (KLR)

Court of Appeal of Kenya

27 April 2017

DMD. K. Musinga SKS. Gatembu Kairu AMA. K. Murgor

353 words in judgment

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The bottom line

Kenya's Court of Appeal cannot reduce a sentence for being too harsh on a second appeal, so this 15-year sentence stands.

What this practically means

Executive summary

The appellant was convicted of causing grievous harm contrary to section 234 of the Penal Code and sentenced to fifteen years' imprisonment. His first appeal to the High Court of Kenya at Eldoret (Kimondo, J.) against both conviction and sentence was rejected on 28 November 2013. Acting in person, he lodged a second appeal to the Court of Appeal at Eldoret directed solely against the sentence, contending it was excessively severe and seeking leniency in the form of a three-year reduction, having been in custody since 8 August 2011. Senior Principal Prosecution Counsel Mulati opposed the appeal, submitting that the Court had no jurisdiction to entertain an appeal against a lawful sentence. The Court agreed with the respondent. Relying on section 361(1)(a) of the Criminal Procedure Code, which confines second appeals to matters of law and expressly bars appeals on matters of fact, the Court held that severity of sentence is a matter of fact and therefore outside its second-appeal jurisdiction. It accordingly dismissed the appeal in a short judgment delivered at Eldoret on 27 April 2017 by Musinga, Gatembu Kairu and Murgor, JJ.A. No costs order was made. The decision affirms the settled limits of the Court of Appeal's jurisdiction on second appeals and binds subordinate courts and litigants on that point.

Key legal issues

Whether the Court of Appeal may entertain a second appeal founded solely on the severity of sentence

Holding

It may not; section 361(1)(a) of the Criminal Procedure Code confines second appeals to matters of law and expressly bars appeals on matters of fact, and severity of sentence is a matter of fact.

Reasoning

The appellant, unrepresented, appealed against sentence only, contending it was severe and seeking a reduction of three years. Prosecution counsel objected that the Court lacked jurisdiction over a purely sentence-severity appeal. The Court agreed, holding that severity of sentence falls outside its second-appeal jurisdiction and accordingly dismissed the appeal.

p. 2

Legal principles established

The Court of Appeal has no jurisdiction on a second appeal to entertain an appeal against the severity of a sentence, severity of sentence being a matter of fact.

Court orders

1.The appeal is dismissed for want of jurisdiction

Authorities

Legislation

Penal Codesection 234
Criminal Procedure Codesection 361(1)(a)

On appeal from: High Court of Kenya at Eldoret; HCCRA No. 172 of 2011
Jurisdiction invoked: Section 361(1)(a) of the Criminal Procedure Code

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Stephen Chebii Cheboiwo v Republic [2017] KECA 562 (KLR)", Case Analysis (2017). Criminal Appeal No. 125 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/562/eng@2017-04-27

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