Waminila v Republic (Criminal Application E009 of 2024) [2025] KECA 1274 (KLR)
The bottom line
#The Court of Appeal refused permission to challenge a 70-year sentence, confirming that appeals about how harsh a sentence is are barred by law.
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 applicants should be granted leave to file an appeal out of time under section 361 of the Criminal Procedure Code and rule 70(3) of the Court's Rules
- 2.Whether the intended appeal, being against severity of sentence (a matter of fact), is competent under section 361(1) of the Criminal Procedure Code
Key legal issues
#Competency of an intended second appeal against the severity of a resentencing decision
The application for leave to appeal out of time was dismissed because the intended appeal, being against the severity of sentence, is barred by section 361(1) of the Criminal Procedure Code.
The applicants were resentenced to 70 years' imprisonment by the trial magistrate after withdrawing their second appeal to pursue resentencing following Muruatetu. Their two revision applications to the High Court were dismissed. They then sought leave to appeal out of time. The Court held that although section 341 permits admission of an appeal out of time for good cause, section 361(1) expressly prohibits hearing appeals on severity of sentence, a matter of fact, and the applicants' grievance concerned sentence only.
Legal principles established
#- Under section 361(1) of the Criminal Procedure Code, the Court of Appeal shall not hear an appeal on a matter of fact, and severity of sentence is a matter of fact; nor an appeal against sentence except where the sentence was enhanced by the High Court or the subordinate court had no power to pass it.
Court orders
#- 1.The application for leave to file an appeal out of time is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated in the ruling
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code and rule 70(3) of the Court of Appeal Rules (leave to file appeal out of time)
Relief refused
#Leave to file an appeal out of time against the resentencing to 70 years' imprisonment
Section 361(1) of the Criminal Procedure Code bars this Court from hearing an appeal on severity of sentence, which is a matter of fact; the applicants' complaint related to sentence, not conviction
Costs
No costs order was made in the ruling.
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 application is therefore devoid of merit and I dismiss it.
the Court of Appeal shall not hear an appeal under this section— a. on a matter of fact, and severity of sentence is a matter of fact; or b. against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.
Issues in the judgment
#The ruling does not name the parties or the case number, and bears the signature and seal of only one Judge of Appeal (D. K. Musinga, President), so the coram is not fully identifiable from the document.
The High Court decision from which leave to appeal was sought is not clearly identified; the ruling refers to two dismissed revision applications (5th May 2022 and 13th July 2023), and it is unclear which was the target of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waminila v Republic (Criminal Application E009 of 2024) [2025] KECA 1274 (KLR)", Case Analysis (2025). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1274/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.