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Peter Gachigwa Migwi v. Republic

(2013) JELR 94109 (CA)

Court of Appeal  •  Criminal Appeal 174 of 2007  •  21 Jun 2013  •  Kenya

Daniel Kiio Musinga, George Benedict Maina Kariuki, Patrick Omwenga Kiage



The appellant was convicted by the trial court for the offence of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to life imprisonment. Being aggrieved by the said conviction and sentence, the appellant preferred an appeal to the High Court. That court, (Ojwang and Dulu, JJ.) heard the appeal, upheld the conviction by the trial court, but as regards sentence substituted the life imprisonment with a sentence of death, having been urged to do so by the State Counsel.

The appellant was again dissatisfied with the outcome of the appeal and moved to this Court. This being a second appeal the Court can only deal with matters of law, not issues of fact. However, where sentence has been enhanced by the High Court, this Court has power to determine whether the enhancement was proper in law. Section 361(1) of the Criminal Procedure Code states as follows:

“361. (1) A party to an appeal from a subordinate court may, subject to subsection (8), a…

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