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Court of AppealStruck OutCriminal Appeal No. 172 of 2000

ANNA AUMA OWINO vs REPUBLIC [2001] KECA 335 (KLR)

Court of Appeal
22 January 2001
JGJ. E. GicheruSBS. E. O. BosireEOE. Owuor
266 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal to it just because a sentence feels too harsh — second appeals only cover legal errors.

What this practically means

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Executive summary

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The appellant, Anna Auma Owino, was convicted after trial before the Chief Magistrate's Court at Mombasa of the alternative count of being in possession of a narcotic drug contrary to section 3(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994, as read with subsection 1(a) of the Act, and was sentenced to five years' imprisonment; the main count of trafficking in narcotic drugs under section 4(a) was not the basis of conviction. Her first appeal against conviction and sentence to the High Court at Mombasa (Waki, J.) was dismissed. She then brought a second appeal to the Court of Appeal at Mombasa, confining her challenge to the severity of the sentence imposed. The Court of Appeal, in a short judgment delivered by the court (Gicheru, Bosire and Owuor, JJ.A.), held that the question of severity of sentence is a matter of fact and that under section 361(1)(b) of the Criminal Procedure Code a second appeal against sentence does not lie. The court accordingly found the appeal incompetent and ordered it struck out. No costs order was recorded. The judgment affirms the settled rule that second appeals in Kenya are confined to matters of law and do not lie against sentence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a second appeal lies against the severity of a sentence imposed on conviction for possession of a narcotic drug

Key legal issues

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Competency of a second appeal against sentence

Holding

The appeal challenging the severity of sentence is incompetent because section 361(1)(b) of the Criminal Procedure Code bars a second appeal against sentence.

Reasoning

The appellant was convicted of possession of a narcotic drug and sentenced to five years' imprisonment. Her first appeal was dismissed. On second appeal she challenged only the severity of the sentence. The court held that severity of sentence is a question of fact, and since section 361(1)(b) of the Criminal Procedure Code excludes second appeals against sentence, the appeal could not lie and was struck out as incompetent.

p. 2

Legal principles established

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  • A second appeal does not lie against sentence under section 361(1)(b) of the Criminal Procedure Code; severity of sentence is a matter of fact outside the scope of a second appeal.

Court orders

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  1. 1.The appeal is ordered struck out as incompetent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
SB
majority
EO
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 241 of 1999
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal)

Relief refused

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Challenge to the severity of the 5-year imprisonment sentence

A second appeal against sentence does not lie under section 361(1)(b) of the Criminal Procedure Code; severity of sentence is a matter of fact

p. 2

Costs

No costs order made

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under section 361(1)(b) of the Criminal Procedure Code a second appeal against sentence does not lie.
p. 2Jurisdiction of second appeal - sentence
In the circumstances this appeal is incompetent and is ordered struck out.
p. 2Final orders - striking out

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, "ANNA AUMA OWINO vs REPUBLIC [2001] KECA 335 (KLR)", Case Analysis (2001). Criminal Appeal No. 172 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/335/eng@2001-01-22

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