Michael Murasia Alias Chotoi David v Republic [2011] KECA 384 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot reduce a sentence on a second appeal, so challenging severity must happen at trial or first appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to entertain a second appeal confined to the severity of sentence
- 2.Whether the sentences imposed were manifestly excessive
Key legal issues
#Jurisdiction over second appeals on sentence
A second appeal against severity of sentence cannot be entertained; the Court's power is circumscribed by statute.
The appellant's appeal was confined to sentence, conviction not being challenged. Section 361 (1) (a) of the Criminal Procedure Code expressly bars second appeals against severity of sentence. The bar is statutory, so the appellant's invocation of a constitutional right of appeal cannot confer jurisdiction on a court whose powers are limited by statute. The High Court had properly found the appeal frivolous under section 352 (2).
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain a second appeal against the severity of sentence.
- A superior court may summarily dismiss a first appeal where the sentence is within the law and not manifestly excessive.
Court orders
#- 1.Appeal dismissed for want of jurisdiction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- H.C.CR.A. No. 61 of 2009
- Jurisdiction invoked
- Second appeal under the Criminal Procedure Code; jurisdiction barred by section 361 (1) (a)
Relief refused
#Reduction of the concurrent sentences of 7 years and 3 years imprisonment
No second appeal lies against severity of sentence under section 361 (1) (a) of the Criminal Procedure Code
Costs
No order as to costs recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Besides this being a second appeal, we would not have jurisdiction to entertain it in view of the clear provisions of section 361 (1) (a) of the Criminal Procedure Code.
As the power of this Court is circumscribed by statute our hands are tied, and we cannot but dismiss the appellant’s appeal for want of jurisdiction. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Murasia Alias Chotoi David v Republic [2011] KECA 384 (KLR)", Case Analysis (2011). Criminal Appeal No. 51 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/384/eng@2011-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.