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Court of AppealDismissedNot stated in the ruling

Waminila v Republic (Criminal Application E009 of 2024) [2025] KECA 1274 (KLR)

Court of Appeal of Kenya
11 July 2025
DMD. K. Musinga
464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused permission to challenge a 70-year sentence, confirming that appeals about how harsh a sentence is are barred by law.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi, delivered by D. K. Musinga, President of the Court, dismissing an application for leave to file an appeal out of time. The applicants were convicted of robbery with violence on 17th January 1996 and sentenced to death; their first appeal to the High Court was dismissed on 25th March 2014. On 21st January 2020 they withdrew their second appeal to the Court of Appeal in order to pursue resentencing at the trial court in light of the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic. On 25th March 2021 the trial magistrate set aside the life sentence imposed after presidential commutation and resentenced them to 70 years' imprisonment. Two successive revision applications to the High Court, dismissed on 5th May 2022 and 13th July 2023, failed. The applicants then sought leave under section 361 of the Criminal Procedure Code and rule 70(3) of the Court of Appeal Rules to file an appeal out of time. The Court held that although section 341 permits admission of an out-of-time appeal for good cause, section 361(1) expressly bars appeals on the severity of sentence, which is a matter of fact, and the applicants' grievance concerned sentence, not conviction. The application was dismissed as devoid of merit. No costs order was made. The ruling binds no subordinate court beyond restating the statutory bar in section 361(1).

Key legal issues

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01

Competency of an intended second appeal against the severity of a resentencing decision

Holding

The application for leave to appeal out of time was dismissed because the intended appeal, being against the severity of sentence, is barred by section 361(1) of the Criminal Procedure Code.

Reasoning

The applicants were resentenced to 70 years' imprisonment by the trial magistrate after withdrawing their second appeal to pursue resentencing following Muruatetu. Their two revision applications to the High Court were dismissed. They then sought leave to appeal out of time. The Court held that although section 341 permits admission of an appeal out of time for good cause, section 361(1) expressly prohibits hearing appeals on severity of sentence, a matter of fact, and the applicants' grievance concerned sentence only.

p. 2

Legal principles established

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  • Under section 361(1) of the Criminal Procedure Code, the Court of Appeal shall not hear an appeal on a matter of fact, and severity of sentence is a matter of fact; nor an appeal against sentence except where the sentence was enhanced by the High Court or the subordinate court had no power to pass it.

Court orders

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  1. 1.The application for leave to file an appeal out of time is dismissed
On appeal from
High Court of Kenya
Not stated in the ruling
Jurisdiction invoked
Section 361 of the Criminal Procedure Code and rule 70(3) of the Court of Appeal Rules (leave to file appeal out of time)

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, "Waminila v Republic (Criminal Application E009 of 2024) [2025] KECA 1274 (KLR)", Case Analysis (2025). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1274/eng@2025-07-11

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