Musyeki Lemoya v Republic [2014] KECA 320 (KLR)
The bottom line
#Kenya's Court of Appeal cut a prisoner's 14-year sentence to 11 years because courts failed to credit his three years in custody before sentencing.
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 over a second appeal on sentence under section 361(1)(a) of the Criminal Procedure Code
- 2.Whether the courts below erred in principle in sentencing by failing to take account of the period spent in custody prior to conviction under section 333(2) of the Criminal Procedure Code
- 3.Whether the sentence should be revisited where the conviction was substituted on appeal from the main count under the repealed Penal Code provision to the alternative count under the Sexual Offences Act
Key legal issues
#Jurisdiction of the Court of Appeal on sentence in a second appeal
The Court has no jurisdiction to entertain an appeal on the severity of sentence as a matter of fact, but retains jurisdiction to interfere where the legality of the sentence is impugned.
Section 361(1)(a) of the Criminal Procedure Code bars second appeals on matters of fact, and severity of sentence is classified as a matter of fact. However, the Court has consistently held that it may interfere with the legality of a sentence if that legality is questioned on second appeal, as stated in Amolo v Republic, Fred Michael Bwayo v Republic and Lazaro Kundu Simiyu v Republic. The appellant's submission on the unaccounted pre-sentence custody period raised the legality of the sentence, engaging that jurisdiction.
Failure to take pre-sentence custody into account
Both courts below erred in principle by failing to consider the roughly three years the appellant spent in custody during trial, contrary to section 333(2) of the Criminal Procedure Code.
The proviso to section 333(2) mandatorily requires that a sentence take account of any period the convicted person was held in custody prior to sentencing. The trial court imposed 14 years without considering the three years spent in custody, and the High Court did not revisit the sentence. That omission amounted to an error in principle entitling the Court of Appeal to interfere with the sentence notwithstanding the bar on fact-based second appeals.
Sentencing where the offence of conviction changes on appeal
The High Court erred in retaining the 14-year sentence without directing its mind to the changed nature of the offence (from carnal knowledge under the repealed Penal Code provision to indecent act with a child under section 11(1) of the Sexual Offences Act) and to the accused's constitutional right to the least severe prescribed punishment.
On first appeal the High Court set aside the conviction on the main count under the repealed Penal Code provision and convicted on the alternative count under section 11(1) of the Sexual Offences Act, which carries a minimum of ten years. Yet it simply retained the 14-year term without reconsidering the sentence in light of the altered offence and the mitigating circumstances. Article 50(2)(p) of the Constitution, in force at the time of the first appeal, guarantees the benefit of the least severe prescribed punishment where the prescribed punishment has changed between the offence and sentencing.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law; severity of sentence is a matter of fact under section 361(1)(a) of the Criminal Procedure Code, but the Court retains jurisdiction to interfere with the legality of a sentence where it is called into question.
- Where an accused person has been held in custody prior to sentence, the sentence imposed must take account of the period spent in custody, as required by the proviso to section 333(2) of the Criminal Procedure Code.
- Where the prescribed punishment for an offence has changed between the time of the offence and the time of sentencing, the accused is entitled to the benefit of the least severe of the prescribed punishments under Article 50(2)(p) of the Constitution.
Court orders
#- 1.Sentence of 14 years imprisonment set aside and substituted with a sentence of 11 years imprisonment
- 2.Appeal dismissed to the extent that it did not succeed on sentence reduction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 444 of 2010
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code
Relief refused
#Reduction of sentence beyond 11 years / interference with conviction
The appeal challenged sentence only; convictions were not challenged and the sentence was reduced only to the extent of the errors in principle identified
Costs
No costs order 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.
We set aside the sentence of 14 years and substitute therefor a sentence of 11 years. To that extent only does this appeal succeed, but is otherwise dismissed.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of facts arrived at in the two courts below unless based on no evidence.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
The exercise of that discretion is a judicious process which must accord with the law. Sentencing is, of course, one of the crucial rights to a fair trial which our Constitution jealously guards.
Our view, in these circumstances, is that the two courts below erred in principle in assessing the sentence and this Court is thus entitled to interfere.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyeki Lemoya v Republic [2014] KECA 320 (KLR)", Case Analysis (2014). Criminal Appeal No. 94 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/320/eng@2014-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.