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Court of AppealDismissedCriminal Appeal (not stated in judgment)· [2025] KECA 434 (KLR)

Wahome v Republic (Criminal Appeal 189 of 2019) [2025] KECA 434 (KLR)

Court of Appeal

28 February 2025

HOHannah Okwengu HOH.A. Omondi JNJoel Ngugi

2,331 words in judgment

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The bottom line

Kenya's Court of Appeal upheld a 20-year sentence, confirming it cannot reduce sentences on second appeals—only trial and High Court judges can.

What this practically means

Executive summary

Collins Wafula Wahome was convicted by the Chief Magistrate's Court at Bungoma of causing grievous harm contrary to Section 234 of the Penal Code, arising from a night attack in which the complainant, Winrose Nasimiyu Wangila, had her right hand severed with a panga, and was sentenced to twenty years' imprisonment, the maximum penalty for the offence. His first appeal to the High Court against both conviction and sentence failed. On second appeal to the Court of Appeal at Kisumu, the appellant raised grounds concerning a defective charge sheet, inconsistencies in the prosecution evidence, uncalled crucial witnesses and insufficiency of proof, but at the plenary hearing he abandoned the appeal against conviction and sought only a reduction of sentence. The Court (Okwengu, H.A. Omondi and Joel Ngugi, JJA) noted that under Section 361(1)(a) of the Criminal Procedure Code a second appeal is confined to matters of law, and that severity of sentence is a matter of fact outside its jurisdiction. Applying Bernard Kimani Gacheru v Republic, the Court held it would not interfere with sentencing discretion absent a manifestly excessive sentence, an overlooked material factor, wrong material considered, or a wrong principle. The trial magistrate had considered the probation report, mitigation and the heinous nature of the attack, and the High Court had found no reason to disturb the sentence. The Court upheld the judgment of the High Court and dismissed the appeal in its totality on 28th February 2025.

Key legal issues

Whether the Court of Appeal had jurisdiction to reduce the appellant's sentence on a second appeal

Holding

The Court held that severity of sentence is a matter of fact excluded from second-appeal jurisdiction under Section 361(1)(a), and that the sentencing discretion of the trial court was properly exercised judicially, so there was no basis for interference.

Reasoning

Section 361(1)(a) confines a second appeal to issues of law and expressly designates severity of sentence as a matter of fact. Sentencing is a discretionary exercise that must be exercised judicially. Interference is warranted only where the discretion was not exercised judicially - a material fact overlooked, an irrelevant factor considered, or the sentence so harsh or lenient as to constitute an obvious error of principle. Here the trial magistrate considered the probation report, mitigation and the heinous nature of the offence, and the first appellate court found no reason to interfere; accordingly the maximum twenty-year term could not be faulted.

p. 5

Legal principles established

On a second appeal under Section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal is confined to matters of law only, and severity of sentence, being a matter of fact, is not open to the Court.
An appellate court will not interfere with a trial court's exercise of sentencing discretion unless the sentence is manifestly excessive, a material factor was overlooked, wrong material was taken into account, or the court acted on a wrong principle.

Court orders

1.Upheld the judgment of the High Court
2.Dismissed the appeal in its totality

On appeal from: High Court (first appellate instance, Bungoma)
Jurisdiction invoked: Section 361(1)(a) of the Criminal Procedure Code (second appeal confined to matters of law)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Wahome v Republic (Criminal Appeal 189 of 2019) [2025] KECA 434 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/434/eng@2025-02-28

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