Wycliff Shiuka Wahome V Republic  EKLR
|Criminal Appeal 11 of 1994||25 Feb 1994|
Philip Kiptoo Tunoi, Abdul Majid Cockar, John Mwangi Gachuhi
Court of Appeal at Nakuru
Wycliff Shiuka Wahome v Republic
Wycliff Shiuka Wahome v Republic  eKLR
Wahome v Republic
Court of Appeal, at Nakuru February 25, 1994
Gachuhi, Cockar & Tunoi JJ A
Criminal Appeal No 11 of 1994
(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr Justice D M Rimita) dated 19th November 1993, in HCCRA No 269 of 1991)
Criminal Practice and Procedure – appeals – appeal against sentence - Court of Appeal not to hear an appeal against a lawful sentence except where the same has been enhanced by the High Court – section 361 (1) (b) Criminal Procedure Code.
Criminal Practice and Procedure – sentencing – circumstances when Court of Appeal can interfere with sentence on second appeal.
The appellant was tried jointly with another for the offence of robbery, convicted and sentenced to 10 years imprisonment with 10 strokes of the cane. They both appealed against the sentence to the High Court, however, their appeals were heard by separate judges. In the case of the appellant’s co-accused his appeal against sentence was successful and the same was reduced to 4 years with 5 strokes of corporal punishment. The appellant’s appeal was however dismissed by the judge who heard it hence a second appeal to the Court of Appeal.
1. Section 361 (1) (b) of the Criminal Procedure Code has prescribed that on a second appeal the Court of Appeal shall not hear an appeal against a lawful sentence except where the same has been enhanced by the High Court.
2. The Court of Appeal has interfered with a sentence where it is satisfied that there is an error in principle involved in the imposition of the sentence.
3. Whereas A1 is sentenced to 4 years imprisonment and 5 strokes, the appellant, charged with same offence and convicted on the same facts by the same magistrate will serve a sentence of 10 years imprisonment and 10 strokes. Such an inordinate disparity in the two sentences is a grave anomaly as well as is evidence of an error in principle in the imposition of sentences.
Appeal allowed, sentence reduced to 4 years and 5 strokes of corporal punishment.
No cases referred to.
1. Penal Code (cap 63) section 296(1)
2. Criminal Procedure Code (cap 75) section 361 (1) (b)