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Court of AppealDismissedCriminal Appeal No. 100 of 2011

P.K.K v Republic [2012] KECA 129 (KLR)

Court of Appeal
19 April 2012
EOE.O. O'KubasuJNJ.G. NyamuKalpana RawalK.H. Rawal
507 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled it cannot reduce a prison sentence unless the sentence came from a High Court appeal that is still alive.

What this practically means

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Executive summary

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The appellant, P.K.K., was convicted by the Senior Principal Magistrate's Court at Nanyuki of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to 18 years imprisonment, the complainant being his nine-year-old daughter. His first appeal to the High Court at Nyeri (Makhandia, J.) was withdrawn on 12 November 2009 as against both conviction and sentence. Acting in person, he then filed a memorandum of appeal in the Court of Appeal at Nyeri challenging the sentence, arguing that he had reformed while in prison after undertaking a carpentry course. Counsel for the State submitted that no valid appeal lay before the Court following the withdrawal in the High Court. The Court of Appeal (O'Kubasu, Nyamu and Rawal, JJ.A.) agreed and raised, on its own motion, a serious jurisdictional issue. It held that section 361(1)(b) of the Criminal Procedure Code bars appeals against sentence except where a sentence has been enhanced by the High Court or the subordinate court had no power under section 7 to pass it; section 3(1) of the Appellate Jurisdiction Act and Article 164(3) of the Constitution confine its jurisdiction to appeals from the High Court. Since there was no appeal from the High Court in existence, the Court lacked jurisdiction and dismissed the appeal. No costs order was made. The judgment binds subordinate courts on the limits of the Court of Appeal's criminal appellate jurisdiction where a first appeal has been withdrawn.

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  1. 1.Whether the Court of Appeal had jurisdiction to entertain an appeal against sentence where the appellant had withdrawn his petition of appeal in the High Court

Key legal issues

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Whether the Court of Appeal could entertain a memorandum of appeal against sentence filed after the appellant withdrew his High Court appeal

Holding

The Court had no jurisdiction; an appeal against sentence is barred by section 361(1)(b) of the Criminal Procedure Code save in the stated exceptions, and jurisdiction under section 3(1) of the Appellate Jurisdiction Act and Article 164(3) of the Constitution requires an appeal from the High Court, which did not exist after the withdrawal.

Reasoning

The appellant was convicted of incest and sentenced to 18 years. He withdrew his High Court petition of appeal on 12 November 2009, then filed a memorandum of appeal in the Court of Appeal challenging only the sentence. The State submitted no valid appeal existed. The Court agreed, holding that the constitutional and statutory provisions conferring its jurisdiction limit it to appeals from the High Court and bar sentence appeals except where a sentence has been enhanced by the High Court or the subordinate court lacked power under section 7 to pass it. Having no appeal from the High Court, the appeal was dismissed.

p. 2

Legal principles established

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  • The Court of Appeal has no jurisdiction to hear an appeal against sentence except where the sentence was enhanced by the High Court or the subordinate court had no power to pass it, and where the first appeal in the High Court has been withdrawn there is no appeal from the High Court before the Court of Appeal.

Court orders

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  1. 1.The appeal is dismissed

The bench

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

EO
majority
JN
majority
Kalpana Rawal
majority
On appeal from
High Court of Kenya at Nyeri
H.C.CR.A. No. 154 of 2008
Jurisdiction invoked
Article 164(3) of the Constitution; sections 361(1)(b) of the Criminal Procedure Code and 3(1) of the Appellate Jurisdiction Act (denying jurisdiction)

Relief refused

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Appellant's challenge to the 18-year sentence imposed for incest, based on claimed reform in prison

The Court lacked jurisdiction to entertain an appeal against sentence under section 361(1)(b) of the Criminal Procedure Code, section 3(1) of the Appellate Jurisdiction Act and Article 164(3) of the Constitution, and there was no appeal from the High Court before it

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.

Thus the provisions of section 361 1(b) of the Criminal Procedure Code, section 3(1) of the Appellate Jurisdiction Act and Article 164(3) of the Constitution clearly deny us the jurisdiction to entertain the matter.
p. 2Lack of jurisdiction over sentence appeals
In the circumstances, we do not have any appeal from the High Court.
p. 2No appeal exists after withdrawal of the High Court petition
In the result, the appeal is dismissed. It is so ordered.
p. 2Final orders

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, "P.K.K v Republic [2012] KECA 129 (KLR)", Case Analysis (2012). Criminal Appeal No. 100 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/129/eng@2012-04-19

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