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Court of AppealAllowedCriminal Appeal No. 133 of 2016· [2019] KECA 561 (KLR)

Sammy Omboke & 1 other v Republic

Court of Appeal of Kenya
3 July 2019
AMAsike MakhandiaPKP. O. KiageOTOtieno-Odek
3,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal quashed drug trafficking convictions because the accused were charged under a law section that does not exist.

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 Kisumu against the judgment of the High Court at Kisii (R. Sitati J) which had upheld the appellants' conviction for trafficking in narcotic drugs and enhanced their sentence from seven years' imprisonment to life imprisonment plus a fine of Ksh. 1,000,000. The appeal raised two issues of law: first, that the appellants had been charged and convicted under Section 4(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act, a provision that does not exist in the Act; and secondly, that the learned judge enhanced the sentence without a cross-appeal by the prosecution and without notice or warning to the appellants. The respondent conceded that Section 4(1) does not exist and that no warning was issued and no appeal or cross-appeal on sentence was filed. The Court, confined to matters of law under Section 361(1) of the Criminal Procedure Code, held that in the absence of a cross-appeal, notice or warning, the judge had no jurisdiction to enhance the sentence, following its own consistent precedents. On the charge, the Court examined the Act, confirmed that Section 4(1) does not exist, and held that the appellants were charged and convicted under a non-existent provision; the trial, conviction and sentence were set aside on that score as well, Section 382 of the Criminal Procedure Code notwithstanding. The appeal was allowed, the convictions quashed, the sentences set aside, and the appellants ordered set at liberty forthwith unless otherwise lawfully held. The judgment binds all subordinate courts and the High Court on its two propositions: an accused must be charged with an offence known in law, and a first appellate court cannot enhance sentence without cross-appeal, notice or warning.

Key legal issues

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01

Defective charge - charging under a non-existent statutory provision

Holding

Section 4(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act does not exist; the appellants were charged and convicted under a non-existent provision and the trial, conviction and sentence were set aside on that score notwithstanding Section 382 of the Criminal Procedure Code.

Reasoning

The court examined the Act and confirmed there is no Section 4(1). The defect was never raised in the courts below and even the prosecution was unaware of it. Although Section 382 ordinarily cures irregularities absent a miscarriage of justice, the court treated charging and convicting under a non-existent provision as going to the root of the charge, rendering the entire process a nullity rather than a curable irregularity.

p. 5
02

Enhancement of sentence without cross-appeal, notice or warning

Holding

The High Court judge erred and had no jurisdiction to enhance the sentence from 7 years to life imprisonment plus a fine of Ksh. 1,000,000 where there was no cross-appeal by the prosecution and no notice or warning to the appellants.

Reasoning

Relying on its previous decisions including EGK v Republic, JOA v Republic and Josea Kibet Koech v Republic, the court reiterated that although warning an appellant before enhancement is a matter of practice rather than a statutory requirement, it is well established that a court may not enhance a sentence without a cross-appeal seeking enhancement or a prior warning conveying to the appellant that the sentence is likely to be enhanced. The respondent conceded there was neither.

p. 4
03

Scope of second appeals

Holding

By dint of Section 361(1) of the Criminal Procedure Code, the Court of Appeal's jurisdiction on a second appeal is limited to matters of law only, and it will not interfere with concurrent findings of fact.

Reasoning

The court restated the settled principle from Chemagong v Republic that a second appeal must be confined to points of law and the Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.

p. 3

Legal principles established

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  • A first appellate court has no jurisdiction to enhance a sentence absent a cross-appeal by the prosecution and absent notice or warning to the appellant before the hearing.
  • An accused person must be charged with an offence known in law; conviction under a statutory provision that does not exist renders the trial, conviction and sentence a nullity.
  • A second appeal is confined to matters of law only.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The convictions are quashed
  3. 3.The sentences are set aside
  4. 4.The appellants to be set at liberty forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Kisii
HC Cr. Appeal No. 233 A of 2011
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code, Chapter 75, Laws of Kenya (second appeal confined to matters of law)

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, "Sammy Omboke & 1 other v Republic", Case Analysis (2019). Criminal Appeal No. 133 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/561/eng@2019-07-03

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