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Court of AppealStruck OutCriminal Appeal No. 77 of 2000· [2001] KECA 51 (KLR)

MWALIMU KADZAGAMBA & TAAB KADZAGAMBA vs REPUBLIC [2001] KECA 51 (KLR)

Court of Appeal of Kenya
24 January 2001
ROR. S. C. OmoloSBS. E. O. BosireEOE. Owuor
265 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 a point of law is raised, not just harshness.

What this practically means

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Executive summary

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This is a consolidated second appeal to the Court of Appeal at Mombasa by Mwalimu Kadzagamba and Taab Kadzagamba against sentences of ten years' imprisonment each. The appellants had pleaded guilty before the Chief Magistrate's Court at Malindi to manslaughter contrary to section 202 as read with section 205 of the Penal Code and were each sentenced to ten years' imprisonment. Their first appeals to the High Court at Mombasa (Waki, J.) were summarily rejected under section 352(2) of the Criminal Procedure Code by a decision dated 28 June 1999. Before the Court of Appeal their sole complaint was that the sentences were harsh and should be reduced. In a single judgment of the court delivered at Mombasa on 24 January 2001 (Omolo, Bosire and Owuor, JJ.A.), the Court of Appeal held that by section 361(1) of the Criminal Procedure Code a second appeal to that court must relate only to points of law, and that the severity of sentence is a matter of fact. The appeals therefore did not lie insofar as they related solely to the severity of sentence, and the court struck them out for being incompetent. No costs order was made and no case authorities were cited. The binding effect of the decision is that a complaint confined to the harshness of a sentence cannot sustain a second appeal to the Court of Appeal, whose jurisdiction on second appeal is confined to points of law; such appeals are incompetent and will be struck out.

Key legal issues

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Whether a second appeal to the Court of Appeal lies where the only complaint is the severity of the sentence imposed.

Holding

No. Section 361(1) of the Criminal Procedure Code confines a second appeal to points of law, and the severity of sentence is a matter of fact. An appeal founded solely on the harshness of sentence is incompetent and must be struck out.

Reasoning

The court applied section 361(1) of the Criminal Procedure Code, which restricts second appeals to the Court of Appeal to points of law. The same provision classifies the severity of sentence as a question of fact. Because the appellants' consolidated appeals complained only that their ten-year sentences were harsh, no point of law arose for determination. Their first appeals had already been summarily rejected in the High Court under section 352(2) of the Code. The court therefore held that the appeals did not lie and struck them out for being incompetent.

p. 2

Legal principles established

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  • A second appeal to the Court of Appeal must relate only to points of law; the severity of a sentence is a matter of fact and cannot ground a second appeal.
  • A second appeal whose only complaint is the harshness of the sentence imposed is incompetent and will be struck out.

Court orders

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  1. 1.The consolidated second appeals were struck out for being incompetent.
On appeal from
High Court of Kenya at Mombasa
H.C. Cr. Appeals Nos. 15 & 16 of 1999
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - a second appeal to the Court of Appeal lies only on points of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "MWALIMU KADZAGAMBA & TAAB KADZAGAMBA vs REPUBLIC [2001] KECA 51 (KLR)", Case Analysis (2001). Criminal Appeal No. 77 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/51/eng@2001-01-24

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