[2015] KEHC 1711 (KLR)
The court found that the two counts against the applicant arose from a single transaction involving the sale and possession of alcoholic drinks without a licence. The trial magistrate imposed consecutive sentences without providing reasons for departing from the established principle that sentences for offences...
Source-derived case information.
- Citation
- [2015] KEHC 1711 (KLR)
- Parties
- Applicant: Consolata Nebere Barasa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 13 of 2015
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Revision allowed. Sentences to run concurrently.
- Legal Topics
- Sentencing Principles, Concurrent Sentences, Alcoholic Drinks Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Consolata Nebere Barasa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentences imposed on the applicant for two related offences should run concurrently or consecutively.
- 2 Whether the trial magistrate erred in departing from the general rule on concurrent sentencing without justification.
Ratio Decidendi
The court found that the two counts against the applicant arose from a single transaction involving the sale and possession of alcoholic drinks without a licence. The trial magistrate imposed consecutive sentences without providing reasons for departing from the established principle that sentences for offences arising from the same transaction should run concurrently. The court held that this was an error and set aside the order for consecutive sentences, substituting it with an order that the sentences run concurrently.
Court Disposition
Revision allowed. Sentences to run concurrently.
Orders
- The order making the sentences consecutive is set aside.
- The sentences imposed on both counts shall run concurrently.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
HC CR. REVISION NO. 13 OF 2015
CONSOLATA NEBERE BARASA--------------------------------- APPLICANT
VERSUS
REPUBLIC------------------------------------------------------------- RESPONDENT
RULING
In the decision of Odero Vs Republic (1984) KLR 621 Bratt and Mbaya JJ Stated
“In cases where a person has been charged with and convicted of two or more counts involving the same transaction, the practice is to direct that the sentences should run concurrently.”
And that is the General Rule.
Here, the Applicant was charged with 2(two) counts. First that she was selling Alcoholic Drink without a Licence contrary to Section 7(1)9b) as read with Section 62 of The Alcoholic Drink Act No. 4 of 2010. In Count 2, she faced a charge of being in possession of Alcoholic Drink without a Licence contrary to Section 7(1)(b) as read with Section 62 of The Alcoholic Drinks Act No. 4 of 2010.
Upon pleading Guilty on both counts, the State Counsel read out the facts as follows;-
“ Sergeant Wanyama and APC Kiprotich tipped that, the Accused dealt with illicit brew Kangara and changaa. She did not have a licence. 22 litres of changaa and 100 litres of Kangara. I produce the same as exhibits.”
Those brief facts suggest that the two counts involved one transaction. But the Hon. Learned Trial Magistrate upon imposing a fine of Kshs. 22,000/- in default 2 months imprisonment in Count 1 and a fine of Kshs. 100,000/- in default 3 months imprisonment in Count 2, ordered that the sentences would be consecutive. The Learned Magistrate did not explain why she departed from a general principle of sentencing and thereby affronted the principle.
In Revision, I do hereby set aside the order making the sentence consecutive and do hereby order that they run concurrently.
Dated, signed and delivered at Busia this 21ST Day of October 2015.
F. TUIYOTT
J U D G E
In the presence of :-
Oile - C/Assistant
N/A - For the State
Applicant in person