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Musyeki Lemoya v. Republic

(2014) JELR 98776 (CA)

Court of Appeal  •  Criminal Appeal 94 of 2014  •  10 Oct 2014  •  Kenya

Coram
Philip Nyamu Waki, John Wycliffe Mwera, Agnes Kalekye Murgor

Judgement

JUDGMENT OF THE COURT

1. This is a short appeal on sentence only. On the face of it, and as submitted by learned Senior Assistant Director of Public Prosecutions, Mr. Njagi Nderitu, the court has no jurisdiction to consider it by dint of section 361 (1) (a) of the Criminal Procedure Code which provides as follows:

“(1) 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.

2. The appellant was charged before Makadara Principal Magistrate (Hon. T. Ngugi) with committing an unnatural offence contrary to Section 162 (a) of the Penal Code. It was alleged in the main count that…

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