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DO v. Republic

(2020) JELR 98389 (CA)

Court of Appeal  •  Criminal Appeal 156 of 2015  •  31 Jan 2020  •  Kenya

Hannah Magondi Okwengu, Sankale ole Kantai, Fatuma sichale



This is a second appeal before us. Our mandate in a second appeal is as stipulated in Section 361(I) (a) of the Criminal Procedure Code. It provides:

“ 361 (I) A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and 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.”

In so far as case law is concerned, the decision of David Njoroge Macharia v. Republic [2011] eKLR sums up the said mandate. In the said decision, it was stated:

“Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no e…

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