Francis Mulwa Munyao v Republic [2020] KECA 476 (KLR)

Court of Appeal

7 August 2020

WKW. Karanja ASAsike-Makhandia JMJ. Mohammed

1,714 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~7 min to read original · ~4 min brief

The bottom line

Kenya's Court of Appeal dismissed a prisoner's sentence appeal, ruling that new arguments and constitutional claims cannot be introduced for the first time at the second appeal stage.

What this practically means

Executive summary

The appellant was convicted by the Chief Magistrate's Court at Nairobi on three counts of committing an unnatural offence contrary to Section 162(a) of the Penal Code and sentenced to 21 years' imprisonment on each count, running concurrently. His first appeal to the High Court (Ojwang, J) failed; the conviction was upheld and the sentence affirmed. On second appeal to the Court of Appeal, the appeal against conviction was withdrawn under Rule 68 of the Court's Rules after the appellant indicated he had served almost the entire sentence, leaving only the appeal against sentence. The appellant sought credit for time spent in remand under Section 333(2) of the Criminal Procedure Code, a reduction of the 21-year term as harsh, and a finding that delay violated his fair-trial rights under Article 50, additionally challenging the constitutionality of Section 361(1). The Court held that the constitutional issues, raised for the first time in submissions with no roots in the notice or grounds of appeal and never raised before the High Court, were not properly before it; entertaining them would exceed its jurisdiction under Article 164(3)(a). The Section 333(2) claim should have been raised in the High Court first, and in any event turned on facts outside the Court's second-appeal remit. The 21-year term was a discretionary, not mandatory, sentence informed by the gravity of the offences, and the Court declined to interfere with sentence severity. The appeal was dismissed.

Key legal issues

Whether constitutional issues raised for the first time in submissions are properly before the Court of Appeal on a second appeal

Holding

They are not; such issues must appear in the notice of appeal or grounds of appeal and ideally be raised in the court below.

Reasoning

The Court acknowledged that points of law may be raised at any level, but held that the alleged violations of the appellant's constitutional rights were absent from the grounds of appeal and were never raised before the High Court. They surfaced only in written submissions that were not even served on the State, and in oral highlights. Entertaining them would exceed the Court's appellate jurisdiction under Article 164(3)(a).

p. 2

Whether the trial court failed to apply Section 333(2) of the Criminal Procedure Code on remand time

Holding

The issue was not properly before the Court and could not be determined on a second appeal.

Reasoning

The appellant should have raised the Section 333(2) issue before the High Court. The Court of Appeal had neither the original record nor the sentence computation, the magistrate's order did not state that the sentence ran from the date of conviction, and the timing of the 2007 amendment to the provision was unclear. In any event, determining whether remand time was credited would be a question of fact, outside the Court's remit on a second appeal.

p. 2

Whether the 21-year sentence was harsh and should be interfered with

Holding

No; the sentence was a lawful exercise of judicial discretion, affirmed by the High Court, and the Court will not interfere with severity of sentence.

Reasoning

The 21-year term was not a mandatory minimum; the magistrate's detailed sentencing notes showed her discretion was not feted and the term reflected the gravity of the offences. The High Court found the discretion properly exercised and affirmed the sentence. Absent unlawfulness, Section 361(2) constrains the Court from interfering with sentence severity on second appeal.

p. 3

Legal principles established

On a second appeal under Section 361(1) of the Criminal Procedure Code, only issues of law fall for determination; severity of sentence is a question of fact and the Court of Appeal will not interfere with lawful sentences passed in the exercise of discretion
Constitutional issues may not be raised for the first time in submissions on appeal where they have no roots in the notice or grounds of appeal and were not raised before the court below
A claim under Section 333(2) of the Criminal Procedure Code (credit for remand time) should be raised first in the High Court, where the original record and sentence computation are available

Court orders

1.The appeal against conviction is marked as withdrawn pursuant to Rule 68 of the Court of Appeal Rules
2.The appeal against sentence is dismissed

Authorities

Legislation

Penal CodeSection 162(a)
Penal CodeSection 164
Criminal Procedure CodeSection 333(2)
Criminal Procedure CodeSection 361(1)
Criminal Procedure CodeSection 361(a)
Criminal Procedure CodeSection 361(2)
Constitution of Kenya, 2010Article 50
Constitution of Kenya, 2010Article 164(3)(a)
Court of Appeal RulesRule 68
Appellate Jurisdiction Act

Cases cited (1)

Musyeki Lemoya v Republic
[2014] eKLR

On appeal from: High Court of Kenya at Nairobi; H.C.CR. A. No. 506 of 2007
Jurisdiction invoked: Article 164(3)(a) of the Constitution and Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Francis Mulwa Munyao v Republic [2020] KECA 476 (KLR)", Case Analysis (2020). Criminal Appeal No. 162 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/476/eng@2020-08-07

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