Yongo v Republic (Criminal Appeal 101 of 2018) [2023] KECA 1462 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot reduce a sentence on a second appeal unless the High Court increased it or the sentence was unlawful.
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 to entertain a second appeal expressed as being against the severity of sentence
- 2.Whether the sentence of 20 years imposed by the subordinate court and upheld by the High Court could be reviewed or reduced on second appeal
Key legal issues
#Jurisdiction of the Court of Appeal over a second appeal against severity of sentence
The Court of Appeal has no jurisdiction to entertain a second appeal against the severity of a sentence that was neither enhanced by the High Court nor unlawful, because severity of sentence is deemed a matter of fact under section 361 of the Criminal Procedure Code.
The appellant, convicted of causing grievous harm and sentenced to 20 years' imprisonment, lost his first appeal in the High Court. His memorandum of appeal was expressly against sentence only, seeking reduction. Under section 361(1) of the Criminal Procedure Code, a second appeal lies only on matters of law, and severity of sentence is a matter of fact. He did not challenge legality of the sentence nor allege enhancement by the High Court, so the statutory debarment applied and the appeal was incompetent.
Legal principles established
#- A second appeal to the Court of Appeal in a criminal case lies only on a matter of law; severity of sentence is a matter of fact and an appeal against sentence is barred except where the High Court enhanced the sentence or the subordinate court lacked power to impose it
Court orders
#- 1.The appeal is struck out for want of jurisdiction, being incompetent as presented
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Homa Bay
- Not stated in the judgment
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeals to the Court of Appeal lie only on matters of law); appeal struck out for want of jurisdiction
Relief refused
#Review and reduction of the 20-year sentence
Section 361 of the Criminal Procedure Code debars the Court of Appeal from hearing an appeal against sentence except where the sentence was enhanced by the High Court or the subordinate court had no power to pass it; severity of sentence is a matter of fact
Costs
No order as to costs was made 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.
this is a second of appeal and by express statutory debarment, we cannot entertain the appeal as presented.
The appeal before us as stated in black and white is against severity of sentence, the very thing the Code deems a matter of fact, over which a second appellate court has no jurisdiction.
this appeal in incompetent for purporting to invoke a jurisdiction this court is bereft of, and is accordingly struck out.
Issues in the judgment
#The memorandum of appeal quoted in the judgment contains apparent typographical errors ('ofience' for 'offence' in the judgment text, and 'in incompetent' in the disposition), suggesting transcription irregularities in the copy certified by the Deputy Registrar
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yongo v Republic (Criminal Appeal 101 of 2018) [2023] KECA 1462 (KLR)", Case Analysis (2023). Not stated in the judgment (Criminal Appeal, Court of Appeal at Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1462/eng@2023-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.