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Court of AppealDismissedCriminal Appeal No. 102 of 2014· [2018] KECA 808 (KLR)

P M M v Republic

Court of Appeal
9 February 2018
PWP. N. WakiPKP. O. KiageAMA. K. Murgor
712 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a lawful prison sentence on a second appeal, even where the prisoner cites old age and illness.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi by P M M, who had pleaded guilty to incest contrary to section 20(1) of the Sexual Offences Act and been sentenced by the trial court to twenty years' imprisonment, a conviction and sentence upheld by the High Court (L. Mutende, J.) in HCCRA No. 168 of 2011. Before the Court of Appeal the appellant filed what he styled 'Mitigation', seeking substitution of the custodial sentence with a lenient or non-custodial sentence on grounds of his age (56 years), deteriorating health, the plight of his dependants, and claimed rehabilitation. The respondent, through Senior Assistant Director of Public Prosecutions Mr. P. Mailanyi, objected that severity of sentence is a matter of fact under section 361(1)(a) of the Criminal Procedure Code, over which the Court has no jurisdiction. The Court agreed. Relying on its earlier decision in Paul Tanui v Republic, it held that second appeals lie on points of law only, and that an appeal against the severity, as opposed to the legality, of a sentence is not maintainable. Since the appellant's complaint went purely to severity and the sentence was lawful, the Court found it had no jurisdiction to interfere. The appeal was accordingly dismissed. The judgment binds subordinate courts and the High Court on the limits of second appeals against sentence.

Key legal issues

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01

Jurisdiction of the Court of Appeal over sentence severity in a second appeal

Holding

The Court lacks jurisdiction to interfere with a lawful sentence on grounds of its severity; severity of sentence is a matter of fact, and second appeals lie on matters of law only.

Reasoning

Section 361(1)(a) of the Criminal Procedure Code restricts second appeals to matters of law and expressly provides that severity of sentence is a matter of fact which the Court of Appeal may not hear. The Court adopted its earlier decision in Paul Tanui v Republic confirming that an appeal against severity, as opposed to legality, of sentence is not maintainable. The appellant's plea was founded solely on mitigation: his age, ill health, dependants and claimed rehabilitation, all of which go to severity, not legality. The 20-year sentence imposed by the trial court and upheld by the High Court was lawful, so the appeal had to fail.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal has no jurisdiction under section 361(1)(a) of the Criminal Procedure Code to entertain an appeal against the severity of a sentence; only the legality of a sentence is appealable.

Court orders

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  1. 1.The appeal is dismissed
On appeal from
High Court of Kenya at Nairobi
HCCRA No. 168 of 2011
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal on a matter of law only)

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 M M v Republic", Case Analysis (2018). Criminal Appeal No. 102 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/808/eng@2018-02-09

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