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Court of AppealDismissedCriminal Appeal No. 8 of 2010

Edward Okoth Were & 2 others v Republic [2011] KECA 322 (KLR)

Court of Appeal of Kenya
17 March 2011
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
1,118 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can only cut a prison sentence on a second appeal if that sentence is actually illegal, not merely harsh.

What this practically means

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Executive summary

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The three appellants were convicted on their own guilty pleas of trafficking in narcotic drugs (bhang) contrary to section 4(a) of the Narcotic Drugs and Psychotrophic Substances (Control) Act, after police found 224 stones, 1960 rolls, 52 stakes and 20 brooms of bhang in their motor vehicle at Koru Junction on 2nd August 2007. The Senior Resident Magistrate's court sentenced each to fifteen years' imprisonment. On first appeal, Mwera J of the High Court held that the admitted facts did not disclose a manner of trafficking, set aside the conviction under section 4(a) and substituted a conviction for possession under section 3(1), sentencing each appellant to nine years' imprisonment. Before the Court of Appeal the appellants raised no challenge to the convictions; they sought only a reduction of sentence, citing their guilty pleas, first-offender status and vocational training attained in prison. The State opposed, contending there was no legal basis for interference. The Court of Appeal, in a single judgment of the court delivered by Omolo, O'Kubasu and Githinji JJA, held that as second appeals the matters were governed by section 361(1) of the Criminal Procedure Code, under which the Court may interfere with a sentence only where it is shown to be illegal; severity of sentence is a question of fact, not law. Finding nothing illegal about the nine-year sentences, the Court dismissed all three appeals. This judgment binds subordinate courts and the High Court on the narrow scope of appellate interference with sentence on second appeals.

Questions the Court framed

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

  1. 1.Whether on a second appeal the Court of Appeal can interfere with a sentence on the ground of its severity
  2. 2.Whether the sentence of nine (9) years imprisonment substituted by the High Court under section 3(2) of the Narcotic Drugs and Psychotrophic Substances (Control) Act is illegal

Key legal issues

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01

Scope of the Court of Appeal's powers on a second appeal against sentence

Holding

The Court cannot interfere with a sentence on a second appeal merely because it appears severe; interference is permitted only where the sentence is illegal.

Reasoning

Section 361(1) of the Criminal Procedure Code confines the Court on a second appeal to questions of law. The appellants, having pleaded guilty and been sentenced, sought leniency on account of being first offenders and of vocational achievements in prison. The Court held that severity of sentence is a question of fact, not law, and the prosecutor confirmed there was no legal basis for interference. No illegality in the nine-year sentences was demonstrated.

p. 2

Legal principles established

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  • On a second appeal the Court of Appeal can only interfere with a sentence where the sentence is shown to be illegal; severity of sentence is a question of fact, not law.

Court orders

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  1. 1.The appeals be and are hereby dismissed

The bench

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

RO
majority

Wrote the judgment

EO
majority

Wrote the judgment

EG
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 122 of 2007
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361(1) of the Criminal Procedure Code

Relief refused

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Reduction of the sentence of nine (9) years imprisonment imposed on each appellant on grounds of mitigation, first-offender status and guilty plea

On a second appeal the Court can only interfere with a sentence where it is shown to be illegal; severity of sentence is a question of fact, not law

p. 2

Costs

No order as to costs is 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 can only interfere with the sentence imposed on each appellant where such sentence is illegal.
p. 2Second appeals - limits on interference with sentence
under section 361(1) of the Criminal Procedure Code, the Court, on a second appeal, can only interfere with the sentence where it is shown to it (i.e. the Court) that the sentence is illegal.
p. 2Section 361(1) Criminal Procedure Code - questions of law on second appeal
We accordingly order that these appeals be and are hereby dismissed.
p. 2Final orders - dismissal of the appeals

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, "Edward Okoth Were & 2 others v Republic [2011] KECA 322 (KLR)", Case Analysis (2011). Criminal Appeal No. 8 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/322/eng@2011-03-17

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