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Court of AppealDismissedCriminal Appeal No. 54 of 2015

Aloise Abuya Auro v Republic [2020] KECA 882 (KLR)

Court of Appeal of Kenya
31 January 2020
EGE. M. GithinjiJMJ. MohammedSKS. ole Kantai
580 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot reduce a prison sentence on a second appeal unless the High Court increased it or the trial court had no power to impose it.

What this practically means

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Executive summary

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The appellant was convicted by the Principal Magistrate's Court at Ndhiwa of causing grievous harm contrary to section 234 of the Penal Code after stabbing his aunt, Margaret Muga Okomo, with a spear on the chest on 7th May 2013. He was acquitted of resisting arrest but sentenced to ten years imprisonment. His first appeal to the High Court against both conviction and sentence was dismissed, the High Court describing the act as deliberate, unprovoked and falling short of causing death. In this second appeal, the appellant challenged only the sentence as manifestly harsh and excessive and sought its reduction. The Court of Appeal, comprising Githinji, J. Mohammed and ole Kantai JJ.A in a single judgment of the court, considered section 361(1) of the Criminal Procedure Code, which restricts second appeals to matters of law and bars appeals against sentence except where the sentence was enhanced by the High Court or the subordinate court lacked jurisdiction to impose it. Finding that the magistrate's court had jurisdiction to pass the ten-year sentence and that the High Court had not enhanced it, the Court held that it had no jurisdiction to entertain the appeal against sentence and that the appeal was incompetent. It accordingly dismissed the appeal. The decision affirms the High Court's judgment and binds subordinate courts and litigants on the narrow scope of second appeals against sentence under section 361(1). No costs order was made.

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 has jurisdiction to hear a second appeal against the severity of a sentence of ten years imprisonment for grievous harm where the sentence was neither enhanced by the High Court nor passed without jurisdiction

Key legal issues

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01

Whether the Court of Appeal has jurisdiction over an appeal against the severity of sentence in a second appeal

Holding

The appeal against sentence is incompetent because severity of sentence is a matter of fact, the subordinate court had jurisdiction to impose ten years imprisonment, and the High Court did not enhance the sentence

Reasoning

Section 361(1) of the Criminal Procedure Code confines second appeals to matters of law and prohibits the Court of Appeal from hearing appeals on matters of fact or against sentence, except where the sentence was enhanced by the High Court or the subordinate court lacked jurisdiction to pass it. Since neither exception applied, the appeal against sentence fell outside the Court's jurisdiction and was incompetent.

p. 1

Legal principles established

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  • A second appeal to the Court of Appeal lies only on a matter of law, and the Court has no jurisdiction to hear an appeal against sentence except where the sentence was enhanced by the High Court or the subordinate court lacked jurisdiction to impose it

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.

EG
majority
JM
majority
SK
majority
On appeal from
High Court of Kenya at Homabay
H.C.CR.A. No. 42 of 2014
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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Reduction of the ten-year imprisonment sentence on the ground that it was manifestly harsh and excessive

The Court lacks jurisdiction under section 361(1) of the Criminal Procedure Code to entertain an appeal against sentence where the subordinate court had jurisdiction and the High Court did not enhance the sentence

p. 1

Costs

No costs order was 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.

It follows that this Court has no jurisdiction to hear the appeal against the sentence and the appeal is thereby incompetent.
p. 1Jurisdiction of the Court of Appeal on second appeal against sentence
Accordingly, the appeal is dismissed. We so order.
p. 1Final orders - dismissal of the appeal

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, "Aloise Abuya Auro v Republic [2020] KECA 882 (KLR)", Case Analysis (2020). Criminal Appeal No. 54 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/882/eng@2020-01-31

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