P M M v Republic [2018] KECA 808 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot reduce a lawful prison sentence on a second appeal, even where the prisoner cites old age and illness.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to entertain an appeal against the severity of a sentence on a second appeal under section 361(1)(a) of the Criminal Procedure Code.
Key legal issues
#Jurisdiction of the Court of Appeal over sentence severity in a second appeal
The Court lacks jurisdiction to interfere with a lawful sentence on grounds of its severity; severity of sentence is a matter of fact, and second appeals lie on matters of law only.
Section 361(1)(a) of the Criminal Procedure Code restricts second appeals to matters of law and expressly provides that severity of sentence is a matter of fact which the Court of Appeal may not hear. The Court adopted its earlier decision in Paul Tanui v Republic confirming that an appeal against severity, as opposed to legality, of sentence is not maintainable. The appellant's plea was founded solely on mitigation: his age, ill health, dependants and claimed rehabilitation, all of which go to severity, not legality. The 20-year sentence imposed by the trial court and upheld by the High Court was lawful, so the appeal had to fail.
Legal principles established
#- On a second appeal, the Court of Appeal has no jurisdiction under section 361(1)(a) of the Criminal Procedure Code to entertain an appeal against the severity of a sentence; only the legality of a sentence is appealable.
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCRA No. 168 of 2011
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal on a matter of law only)
Relief refused
#Substitution of the 20-year imprisonment sentence with a lenient, non-custodial sentence on grounds of old age, ill health and rehabilitation
The Court has no jurisdiction under section 361(1)(a) of the Criminal Procedure Code to interfere with a lawful sentence on the ground of severity, which is a matter of fact.
Costs
No costs order made
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Second appeals to this court are on a point of law only and the severity of sentence is expressly a matter of fact (see Section 361 (1) (a) of the Criminal Procedure Code).
Pursuant to section 361 (1) (a), we find that we have no jurisdiction to interfere with the lawful sentence of the courts below.
As a consequence, this appeal must fail, and is therefore dismissed. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P M M v Republic [2018] KECA 808 (KLR)", Case Analysis (2018). Criminal Appeal No. 102 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/808/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.