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Court of AppealDismissedCriminal Appeal No. 25 of 2017· [2020] KECA 489 (KLR)

Michael Lennox Odero v Republic [2020] KECA 489 (KLR)

Court of Appeal
24 July 2020
559 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a sentence on a second appeal unless the High Court increased it or the trial court had no power to impose it.

What this practically means

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Executive summary

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The appellant, Michael Lennox Odero, was convicted in the Chief Magistrates' Court at Homa Bay of defilement contrary to section 8(1) and (2) of the Sexual Offences Act, 2006 and sentenced to life imprisonment. His first appeal to the High Court at Homa Bay (Majanja, J.) failed on conviction; however, since the evidence established that the complainant was 11 years and 3 months old rather than 7, the High Court reduced the sentence to 20 years' imprisonment. On this second appeal, heard virtually on 30th April 2020 under the COVID-19 practice directions, the unrepresented appellant abandoned the appeal against conviction and pressed only for a reduction of sentence on mitigatory grounds: that he was the sole breadwinner, was young at the material time, was a first offender, and was remorseful. The prosecution opposed any interference with the sentence. The Court of Appeal (Okwengu, Musinga and Gatembu Kairu, JJ.A.) held that under section 361(1)(a) of the Criminal Procedure Code, severity of sentence is a matter of fact beyond the reach of a second appeal, and under section 361(1)(b) an appeal against sentence lies only where the High Court enhanced the sentence or the trial court lacked power to impose it. Neither exception applied: the trial court had power to impose the life sentence, and the High Court had merely reduced it. Relying on Njoroge v Republic [1982] KLR 388, the Court dismissed the appeal in its entirety. Judgment was dated and delivered at Nairobi on 24th July 2020.

Key legal issues

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01

Jurisdiction of the Court of Appeal on a second appeal to interfere with sentence

Holding

The Court had no jurisdiction to interfere with the 20-year sentence because it was not enhanced by the High Court and the trial court had power to impose the original sentence

Reasoning

Section 361(1)(a) of the Criminal Procedure Code makes severity of sentence a matter of fact, excluding it from a second appeal. Section 361(1)(b) permits an appeal against sentence only where the High Court enhanced the sentence or the trial court lacked power to pass it. Here the trial court had power to pass the life sentence it imposed; the High Court only reduced it to 20 years on account of the complainant's actual age of 11 years and 3 months. Neither exception applied, so the reduced sentence could not be disturbed.

p. 1
02

Abandonment of the appeal against conviction

Holding

The appellant, though unrepresented, orally abandoned his appeal against conviction at the hearing, leaving only the sentence for determination

Reasoning

When the appeal was called out, the unrepresented appellant informed the Court he was no longer challenging his conviction. The Court recorded this as an abandonment of the appeal against conviction, confining the hearing to mitigation on sentence. No jurisdictional or fairness objection was raised, and the prosecution opposed any reduction of the sentence.

p. 1

Legal principles established

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  • On a second appeal, severity of sentence is a matter of fact and the Court of Appeal has no jurisdiction to consider matters of fact
  • The Court of Appeal on a second appeal cannot hear an appeal against sentence except where the sentence was enhanced by the High Court or the trial court had no power to pass it

Court orders

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  1. 1.Appeal against conviction recorded as abandoned
  2. 2.Appeal against sentence dismissed in its entirety

Authorities

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Legislation

  • Sexual Offences ActSection 8(1) and (2)
  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 361(1)(b)

Cases cited (1)

  • Njoroge v Republic
    [1982] KLR 388
On appeal from
High Court of Kenya at Homa Bay
H.C. CRA. No. 2 of 2016
Jurisdiction invoked
Section 361(1)(a) and (b) of the Criminal Procedure Code (second appeal)

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, "Michael Lennox Odero v Republic [2020] KECA 489 (KLR)", Case Analysis (2020). Criminal Appeal No. 25 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/489/eng@2020-07-24

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