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Court of AppealDismissedCriminal Appeal 151 of 2006

Ekaburat Echakar & another v Republic [2008] KECA 196 (KLR)

Court of Appeal
11 April 2008
SBS. E. O. BosireWDW. S. DeverellDAD. K. S. Aganyanya
846 words in judgment
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The bottom line

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Kenya's Court of Appeal cannot reduce a sentence on a second appeal unless a point of law is raised—sentence severity is treated as fact.

What this practically means

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Executive summary

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The appellants, sons of the complainant Echakar Edapal, were charged before the Senior Resident Magistrate's Court at Lodwar with stock theft contrary to section 278 of the Penal Code in respect of 24 camels belonging to their father. They initially denied the charge but changed their plea to guilty at the hearing and were each sentenced to 10 years imprisonment. Their first appeals against sentence to the High Court at Kitale (Karanja J) were dismissed, the Judge finding the sentence lawful and proper after considering the mitigation. On second appeal to the Court of Appeal at Eldoret, the appellants complained that the superior court failed to consider their mitigation, failed to give them the benefit of doubt, and that the camels effectively belonged to them as sons of the complainant; each asked for reduction of the sentence. The Court, in a single judgment delivered by Bosire, Deverell and Aganyanya JJA, held that being a second appeal, only points of law could be raised, and that all the complaints raised were factual. Relying on section 361(1) of the Criminal Procedure Code, which bars second appeals on matters of fact and declares severity of sentence to be a matter of fact, the Court held it had no jurisdiction to interfere. The High Court's dismissal of the first appeals was affirmed and the second appeal was dismissed, the appellants to serve the remainder of their sentences. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal has jurisdiction under section 361(1) of the Criminal Procedure Code to entertain a second appeal complaining about the severity of a sentence
  2. 2.Whether the superior court considered the appellants' mitigation before confirming the sentence

Key legal issues

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Jurisdiction of the Court of Appeal over sentence severity in a second appeal

Holding

The Court of Appeal has no jurisdiction in a second appeal to entertain complaints about the severity of a sentence, as severity of sentence is a matter of fact.

Reasoning

Section 361(1) of the Criminal Procedure Code confines second appeals to matters of law and expressly provides that severity of sentence is a matter of fact. The appellants' complaints that the sentence was too harsh, that mitigation was not considered, and that the camels effectively belonged to them were all factual issues outside the Court's jurisdiction, so the appeal had to be dismissed.

p. 2

Legal principles established

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  • In a second appeal to the Court of Appeal, only points of law may be raised; severity of sentence is a matter of fact and not law.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Appellants to serve the remainder of their sentences

The bench

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

SB
majority
WD
majority
DA
majority
On appeal from
High Court of Kenya at Kitale
H.C.CR.A. Nos. 123 & 124 of 2005
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code

Relief refused

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Reduction of the 10-year imprisonment sentences

Severity of sentence is a matter of fact on which the Court of Appeal has no jurisdiction in a second appeal

p. 2

Costs

No costs order made in the judgment.

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.

Briefly put, we have no jurisdiction to entertain this appeal and we therefore order the same to be dismissed.
p. 2Disposition - dismissal for want of jurisdiction
A party to an appeal from a subordinate court may subject to sub-section (8) appeal against a decision of the High Court in its appellate jurisdiction on a matter of law and the Court of Appeal shall not hear an appeal under this section: on a matter of fact, and severity of sentence is a matter of fact
p. 2Section 361(1) Criminal Procedure Code - scope of second appeals

Issues in the judgment

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minor

The judgment refers to section 361(1)(b) of the Criminal Procedure Code as the possible gateway for intervention, but the quoted provision of section 361(1) appears in a differently labelled sub-paragraph (a); the reference to subsection (b) may be a misprint.

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, "Ekaburat Echakar & another v Republic [2008] KECA 196 (KLR)", Case Analysis (2008). Criminal Appeal 151 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/196/eng@2008-04-11

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