[1995] KECA 40 (KLR)
The Court of Appeal found that the High Court erred in summarily rejecting the appellant's appeals because the grounds of appeal were not confined to the matters under section 352(2) of the Criminal Procedure Code. The court held that the appellant's pleas of guilty were unequivocal and the convictions should stand....
Source-derived case information.
- Citation
- [1995] KECA 40 (KLR)
- Parties
- Appellant: Clement Waruru Nyahuro; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 72 of 1995
- Procedural Posture
- Criminal Appeal / Appeal From Summary Rejection of Appeal by the High Court
- Outcome
- Appeal allowed in part; convictions upheld, sentences varied.
- Legal Topics
- Burglary and Stealing, Sentencing Principles, Concurrent Sentences, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Waruru Nyahuro
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Summary Rejection of Appeal by the High Court
Legal Issues
- 1 Whether the High Court erred in summarily rejecting the appellant's appeals under section 352(2) of the Criminal Procedure Code.
- 2 Whether the sentences imposed should run concurrently or consecutively.
- 3 Whether the convictions based on the appellant's guilty pleas were proper.
Ratio Decidendi
The Court of Appeal found that the High Court erred in summarily rejecting the appellant's appeals because the grounds of appeal were not confined to the matters under section 352(2) of the Criminal Procedure Code. The court held that the appellant's pleas of guilty were unequivocal and the convictions should stand. However, applying the principle that sentences for offences committed in the same transaction should generally run concurrently, the court directed that the prison terms be served concurrently. The court also reduced the number of strokes of the cane to one on each limb, resulting in a total sentence of three years' imprisonment and four strokes of the cane.
Court Disposition
Appeal allowed in part; convictions upheld, sentences varied.
Orders
- The prison terms shall be served concurrently.
- The number of strokes is reduced to one on each limb, totaling four strokes of the cane.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAKURU
Criminal Appeal 72 of 1995
CLEMENT WARURU NYAHURO …………................………………APPELLANT
AND
REPUBLIC ………...................................………………………….RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr. D. M. Rimita) dated 6th June, 1994
IN
H. C. CR. A. NOS. 31 & 32 OF 1994)
*******************************
JUDGMENT OF THE COURT
These two appeals have been consolidated for convenient disposal.
The appellant was convicted on 31st January, 1994 by the Nakuru Senior Resident Magistrate on his own plea of guilty on the offence of burglary and stealing contrary to secitons 304(2) and 279(b) of the Penal Code and sentenced to a concurrent 3 years' imprisonment on each limb and 12 strokes of the cane. This was in Criminal Case No. 241 of 1994 (Criminal Appeal No. 2 of 1995 herein).
It would appear that so soon thereafter the appellant was again arraigned before the same magistrate on a similar charge of burglary and stealing to which he pleaded guilty and was accordingly sentenced to 2 years' imprisonment on each limb. The jail terms were ordered to be served concurrently. The appellant was also ordered to receive 8 strokes of the cane. This latter case was Criminal Case No. 242 of 1994 (Criminal Appeal No. 72 of 1995 herein). The sentences imposed in the second case were ordered to be served consecutively with those already imposed in Criminal Case No. 241 of 1994. His appeal to the High Court of Kenya at Nakuru were summarily rejected under section 352(2) of the Criminal Procedure Code. Against that summary rejection the appellant has preferred these appeals to this court.
It is clear from perusal of the grounds of appeal before the High Court that they were not confined to the two matters under section 352(2) of the Criminal procedure Code under which an appeal may be summarily rejected. In our view, the High Court in its appellate jurisdiction erred in dealings with the appellant's appeals by rejecting his appeals to that court.
Under section 3(2) of the Appellate jurisdiction Act (Cap 9 of the Laws of Kenya) we will dispose of these appeals once and for all.
As far as the pleas are concerned we are satisfied that they were unequivocal and must stand. We shall not therefore interfere with the convictions.
The practice where a person commits more than one offence at the same time in the same transaction is, save in very exceptional circumstances, to impose concurrent sentences. See REX V SAWEDI MUKASA s/o ABDULLA ALIGWAISA, 13 E. A. C. A. 97. The offences on which the appellant was convicted were a series of offences committed within a space of a month or so and within the same locality. It was therefore preferable to impose concurrent sentences.
We direct that the prison terms shall be served concurrently and the number of strokes are reduced to one on each limb so that the appellant will now serve a total sentence of 3 years' imprisonment and receive 4 strokes of the cane.
Dated and delivered at Nakuru this 28th day of September, 1995
J. E. GICHERU
…………………….
JUDGE OF APPEAL
P. K. TUNOI
…………………..
JUDGE OF APPEAL
A. B. SHAH
……………………….
JUDGE OF APPEAL
I certify that this a true copy of the original.
DEPUTY REGISTRAR