M K M v Republic (Criminal Appeal 204 of 2016) (Crim) [2018] KECA 763 (KLR)

Court of Appeal of Kenya

26 January 2018

PKP. Kihara Kariuki DMD. K. Musinga PKP. O. Kiage

825 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed it cannot reduce sentences on second appeals, even when the request is dressed up as 'mitigation'.

What this practically means

Executive summary

The appellant, M K M, was convicted by the Senior Resident Magistrate's Court at Yatta of incest by a male person contrary to section 20(1) of the Sexual Offences Act and sentenced to life imprisonment for the carnal knowledge of his two-year-old daughter. His first appeal against conviction and sentence was dismissed by the High Court at Machakos (B.P. Jaden, J.) on 28th October 2015. He then filed in the Court of Appeal a document titled 'Grounds of Mitigation' seeking a lesser jail term, citing his religious transformation, carpentry training and family circumstances, and orally stating that the complainant had agreed to drop the charges. The respondent contended that the Court lacked jurisdiction, since section 361(1) of the Criminal Procedure Code confines second appeals to matters of law and expressly makes severity of sentence a matter of fact. The Court agreed, holding that it cannot entertain a challenge to the severity of sentence by whatever name called, and that the practice of presenting such complaints as 'mitigation statements' has no foundation in law, is contrary to statute and should stop. It added that a genuine appeal must rest on a memorandum of appeal under Rule 64(2) setting out grounds of law. Assuming such jurisdiction would be a deliberate violation of statute and a nullity. The appeal was dismissed in entirety. No costs order was recorded.

Key legal issues

Whether the Court of Appeal has jurisdiction to entertain a second appeal presented as mitigation against severity of sentence

Holding

It does not. Section 361(1) of the Criminal Procedure Code confines second appeals to matters of law and expressly makes severity of sentence a matter of fact; entertaining such an appeal would be a nullity.

Reasoning

The Court held that section 361(1) of the Criminal Procedure Code expressly denies it power to hear second appeals on matters of fact, including severity of sentence, and only permits appeals against sentence where it has been enhanced by the High Court or the subordinate court lacked power to impose it. Framing the complaint as a 'Grounds of Mitigation' document does not cure the statutory bar. Assuming such jurisdiction would be a deliberate violation of statute and a nullity. Additionally, an appeal must be founded on a memorandum of appeal under Rule 64(2) setting out grounds of law.

p. 2

Legal principles established

The Court of Appeal, as a second appellate court, has no jurisdiction to entertain a challenge to the severity of a sentence, whether framed as an appeal or as a mitigation statement, because severity of sentence is a matter of fact under section 361(1) of the Criminal Procedure Code.
The practice of presenting second appeals against severity of sentence as 'mitigation statements' has no foundation in law and should stop.

Court orders

1.The appeal is dismissed in entirety

Authorities

Legislation

Sexual Offences Actsection 20(1)
Criminal Procedure Codesection 361(1)
Criminal Procedure Codesection 7
Court of Appeal RulesRule 64(2)

On appeal from: High Court of Kenya at Machakos; HC.CR.A. No. 156 of 2013
Jurisdiction invoked: Section 361(1) of the Criminal Procedure Code (second appeal lying only on matters of law)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "M K M v Republic (Criminal Appeal 204 of 2016)  (Crim) [2018] KECA 763 (KLR)", Case Analysis (2018). Criminal Appeal No. 204 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/763/eng@2018-01-26

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