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Court of AppealDismissedCriminal Appeal 427 of 2009

Daniel Maina Ndirangu v Republic [2010] KECA 77 (KLR)

Court of Appeal of Kenya
4 November 2010
SBS. E. O. BosireEGE. M. GithinjiJNJ. G. Nyamu
809 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a jail sentence in a second appeal, because how harsh a sentence feels is a question of fact, not law.

What this practically means

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Executive summary

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The appellant was convicted of being in possession of ammunition without a firearm certificate contrary to section 4(1) as read with section 4(3) of the Firearms Act Cap 114 and sentenced to ten years imprisonment, the maximum penalty. His first appeal to the High Court at Nyeri (Makhandia, J) was abandoned on conviction and pursued only on sentence, and was dismissed, the Judge holding the sentence lawful and deserved given the appellant's previous antecedents. Before the Court of Appeal at Nyeri, the appellant raised two grounds ostensibly against conviction - arraignment beyond 24 hours contrary to section 72(3)(b) of the repealed Constitution, and failure to call a police witness who escorted the ammunition to the ballistic examiner - while orally asking for a downward review of sentence. The Court held that, this being a second appeal under section 361(1) of the Criminal Procedure Code, an appeal against the severity of sentence does not lie, severity of sentence being a matter of fact. It further found the evidence of possession of two rounds of ammunition was believed by both courts below and that the sentence, though long, was lawful and free of error in principle. The full bench dismissed the appeal in its entirety. No costs order was recorded. The judgment binds lower courts on the scope of section 361(1): second appeals lie on matters of law only, and severity of sentence is a matter of fact.

Questions the Court framed

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

  1. 1.Whether the appellant was presented before the trial court after the expiry of 24 hours contrary to section 72(3)(b) of the repealed Constitution, breaching his right to a fair trial
  2. 2.Whether the failure to call an essential police witness who escorted the ammunition to the ballistic examiner vitiated the conviction
  3. 3.Whether the Court of Appeal has jurisdiction to entertain an appeal against the severity of sentence in a second appeal
  4. 4.Whether the sentence of ten years imprisonment was manifestly harsh or excessive

Key legal issues

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01

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

Holding

An appeal against the severity of sentence does not lie in a second and final appeal because severity of sentence is a matter of fact within the bar of section 361(1).

Reasoning

The Court applied section 361(1) of the Criminal Procedure Code, which restricts second appeals to matters of law. It found that although the appellant's petitions raised grounds prima facie challenging conviction, his oral submissions before both the superior court and this Court showed he was aggrieved only by the length of the sentence. Since severity of sentence is expressly a matter of fact, the appeal against sentence does not lie, and in any event the maximum lawful sentence of ten years was not shown to have been imposed in error of principle.

p. 2
02

Sufficiency of evidence of possession of ammunition

Holding

The evidence that the appellant was arrested with two rounds of ammunition was accepted by both the trial court and the first appellate court, and no basis for disturbance was established.

Reasoning

The Court noted that the witnesses who testified to the recovery of the ammunition were believed by both courts below. The appellant's complaint that an essential police witness who escorted the ammunition to the ballistic examiner was not called did not persuade the Court to interfere; the conviction rested on evidence twice concurrently found. The Court also observed that the appellant's own oral submissions indicated he had abandoned the appeal on conviction.

p. 2

Legal principles established

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  • In a second appeal 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.

Court orders

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  1. 1.The appeal is dismissed in its entirety

The bench

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

SB
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Nyeri
H.C. CR.A. No. 116 of 2008
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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Review downwards of the ten-year sentence on the ground that it is harsh and excessive

Severity of sentence is a matter of fact and this Court has no jurisdiction under section 361(1) of the Criminal Procedure Code to hear such an appeal; in any event the sentence is lawful and neither court below erred in principle

p. 2

Challenge to conviction on the ground of late arraignment and non-calling of an essential witness

The appellant in substance abandoned the appeal on conviction, and the evidence of possession of ammunition was believed by both courts below

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.

this being a second appeal, by dint of the provisions of section 361(1) of the Criminal Procedure Code, this appeal does not lie
p. 2Second appeal limited to matters of law; severity of sentence is a matter of fact
while we are of the view that the sentence is long, it is nonetheless a lawful sentence and both courts below did not err in principle
p. 2Lawfulness of maximum sentence; no error in principle
Accordingly, it is ordered dismissed in its entirety.
p. 2Final orders - dismissal of the 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, "Daniel Maina Ndirangu v Republic [2010] KECA 77 (KLR)", Case Analysis (2010). Criminal Appeal 427 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/77/eng@2010-11-04

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