[2022] KEHC 11023 (KLR)

Alex v Republic (Criminal Revision E002 of 2022) [2022] KEHC 11023 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11023 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E002 of 2022

MM Kasango, J

June 7, 2022

Between

Gimadu Alex

Applicant

and

Republic

Respondent

(Criminal Revision application from the ruling on sentence of July 21, 2021 at Githunguri Senior Principal Magistrate’s Court (Hon B Ojoo, SPM) in Criminal Case No E293 of 2021))

Ruling

1. Gimadu Alex (applicant) was convicted before the Githunguri Senior Principal Magistrate on his own plea of guilty to the charge of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code. He was sentenced on July 21, 2021 to a fine of Kshs 30,000 and in default to serve imprisonment of 1 year on each limb of the offence.

2. The applicant filed an application before this court seeking revision of his sentence. The revision is brought under the provisions of section 362 of the Criminal Procedure Code which provides:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

3. I have perused the facts of the case which the prosecution gave to the trial court, that the complainant on March 21, 2021 left his house securely locked up and on the following day he found it broken into and two radios and two speakers had been stolen. The value of those stolen items was stated to be Kshs 38,000/=. On the police mounting an investigation, they found the applicant with a bunch of master keys. The applicant confirmed those facts as being correct.

4. The trial court obtained a presentencing probation report. That report was negative. The report favoured a non-custodial sentencing of the applicant.

5. My consideration of the trial court’s record, I can discern no illegality on the sentence which can attract revision by this court, save that the trial court should have ordered the term of imprisonment to run concurrently. This is because both limbs of the charge were of the same transaction. See what the court of appeal stated in that regard as cited in the case Mathew Kibichii Chirchir v Republic (2019) eKLR thus:-“(7) While considering the issue of the two limbs of the offence in section 304 of the Penal Code the court in Njoka v R (2001) KLR 175 the Court of Appeal (Chunga, CJ., Omolo & O’Kubasu, JJA) held as follows:“There is however, a third issue that arose in our opinion in this appeal. This was a sentence which, as we indicated earlier, the trial magistrate ordered to run consecutively. Section 304 (2) of the penal Code, cap 63, was the main section under which the appellant was charged. The section does however create two offences rather than one offence. The first offence it creates is burglary and the second offence it creates is stealing from the house. Both offences, however, are usually committed in the course of one transaction and they carry ne mens rea. They are, also, usually laid as one offence in one count. The charge is then said to carry two limbs namely one for burglary and one for stealing from the house.The question which arises, in the circumstances, is whether, on conviction, the sentences both limbs of the offence should be concurrent or consecutive.In law it lies in the discretion of the court to order whether sentences should run concurrently or consecutively. Nevertheless, it is an established principle of law that where the offences are committed in one transaction, the sentences ought to run concurrently even when laid in separate counts.”

Disposal 6. The sentence of the trial court shall not be revised save that the sentence of Gimadu Alex of one years on each of the two limbs is hereby revised and that sentence of one year on each limb shall run concurrently and shall begin to run from March 23, 2021, the date he was placed in custody.

RULING DATED and DELIVERED at KIAMBU this 7th day of JUNE, 2022. MARY KASANGOJUDGECoram:Court assistant : MouriceApplicant: Gimadu Alex : - absentFor respondent : - Mr KasyokaRuling delivered virtually.MARY KASANGOJUDGE