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Court of AppealDismissedCriminal Appeal 415 of 2007

Zacharia Waithaka Mwaura v Republic [2010] KECA 201 (KLR)

Court of Appeal of Kenya
28 May 2010
SBS. E. O. BosirePWP. N. WakiAVAlnashir Visram
613 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot hear second appeals about how harsh a sentence is, only about errors of law.

What this practically means

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Executive summary

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The appellant, Zacharia Waithaka Mwaura, was convicted by the Chief Magistrate's Court at Nakuru of defilement of a girl under 14 years contrary to section 145(1) of the Penal Code and sentenced to 14 years' imprisonment. His first appeal to the High Court at Nakuru (Koome, J.) was against sentence only and was dismissed on 8th February 2007. He then lodged this second and final appeal, drafting his own memorandum citing six grounds directed at both conviction and sentence. At the hearing, however, he conceded that the appeal was on sentence only, since he had not appealed against conviction in the superior court. The State, through learned State Counsel Mr. Vincent Nyakundi, submitted that no appeal on sentence lay to the Court. The Court of Appeal (Bosire, Waki and Visram, JJ.A.) agreed, holding that under section 361 of the Criminal Procedure Code a second appeal lies only on matters of law, and that the severity of sentence is expressly a matter of fact on which no second appeal may be heard. The Court therefore found it had no jurisdiction to determine the appeal, dismissed it, and ordered that the lawful sentence imposed by the superior court shall remain. The judgment affirms that an appellant who confined his first appeal to sentence cannot later raise conviction grounds on second appeal. No costs order is recorded. The judgment is a single judgment of the whole court, dated and delivered at Nakuru on 28th May 2010.

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 to hear a second appeal against the severity of a sentence
  2. 2.Whether the appellant, having appealed to the superior court on sentence only, could raise grounds challenging conviction on second appeal

Key legal issues

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01

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

Holding

The Court has no jurisdiction to entertain an appeal against the severity of a sentence because such severity is a matter of fact, and section 361 of the Criminal Procedure Code confines second appeals to matters of law.

Reasoning

The appellant's first appeal to the High Court was against sentence only, and it was dismissed. On second appeal he conceded the appeal was on sentence only. Section 361(1) of the Criminal Procedure Code expressly provides that the Court of Appeal shall not hear an appeal on a matter of fact, and that severity of sentence is a matter of fact. The appeal therefore fell outside the Court's appellate jurisdiction and had to be dismissed, with the lawful sentence standing.

p. 2
02

Scope of grounds on second appeal where conviction was not challenged below

Holding

Although the memorandum of appeal cited six grounds challenging both conviction and sentence, the appellant could not pursue conviction grounds because his first appeal was on sentence only.

Reasoning

The court noted the appellant drew the memorandum of appeal in person citing six grounds touching conviction and sentence, but at the hearing conceded the appeal was on sentence only, consistent with his first appeal to the superior court. Having elected not to appeal against conviction in the superior court, he could not introduce conviction challenges at the second appellate stage. Only the sentence issue survived, and that too was barred by section 361.

p. 2

Legal principles established

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  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal has no jurisdiction to interfere with sentence, as severity of sentence is a matter of fact and not law.
  • A second appeal is confined to matters of law only.
  • An appellant who did not challenge conviction in the first appellate court cannot raise grounds challenging conviction on a second appeal.

Court orders

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  1. 1.The appeal be and is hereby dismissed
  2. 2.The sentence imposed by the superior court, being a lawful sentence, shall remain

The bench

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

SB
majority
PW
majority
AV
majority
On appeal from
High Court of Kenya at Nakuru
H. C. CR. A. No. 21 of 2004
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal lying only on matters of law)

Relief refused

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Challenge to conviction on second appeal

The appellant had appealed to the superior court on sentence only and could not raise conviction grounds on second appeal

p. 2

Appeal against sentence

Severity of sentence is a matter of fact on which no second appeal lies under section 361 of the Criminal Procedure Code

p. 2

Costs

No costs order recorded 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.

We must therefore find and hold, as we now do, that this Court has no jurisdiction to determine the appeal and we order that it be and is hereby dismissed.
p. 2Final orders – dismissal of appeal for want of jurisdiction
The sentence imposed by the superior court being lawful sentence shall remain.
p. 2Final orders – sentence to remain undisturbed
a second appeal may only be based on matters of law and not facts
p. 2Scope of second appeal under section 361, Criminal Procedure Code
severity of sentence is a matter of fact
p. 2Classification of sentence severity as a matter of fact

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, "Zacharia Waithaka Mwaura v Republic [2010] KECA 201 (KLR)", Case Analysis (2010). Criminal Appeal 415 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/201/eng@2010-05-28

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