Katuku v Republic (Miscellaneous Criminal Application E098 of 2025) [2026] KEHC 10748 (KLR) (1 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS MISC.CRIMINAL APPLICATION NO. E098 OF 2025 DAVID MUTUKU KATUKU...................................................APPLICANT VERSUS REPUBLIC .......................................................................RESPONDENT RULING 1. By a Notice of Motion application 11th November 2025 brought under Articles 50 (2)(p) and 165(6) of the Constitution 2010, Sections 362 and 333(2) of the Criminal Procedure Code, 2019, Rule l. 2.5 of the Sentencing Policy Guideline 2023, the Applicant seeks for ORDERS: 2. *That the Honourable Court be pleased to consider this matter in the interest of justice.* 3. *That the Honourable Court be pleased to consider consolidating two files namely SOA 23 of 2019 and SOA 188 of 2019 both at Machakos Law Court.* 4. *That the Honourable Court be pleased to when granting the orders in (2) above to allow the sentences to run concurrently. * 5. *That the Honourable Court be pleased to when granting the orders in (2) and (3) above to allow the sentences to run from the date of arrest (25th March, 2019)* 6. *Spent* 7. The application is supported by the supporting affidavit of the Applicant dated 13th November, 2025 and premised on the following grounds: 8. That the Applicant was charged before the Chief Magistrate Court at Machakos with the offence of defilement contrary to section 8(1) with 8(2) of the Sexual offences Act No. 3 of 2006 vide SOA Criminal Case File No. SOA 23 of 2019 and sentenced to fifteen (15) years by Hon. E.H Keago CM on 6th December, 2021. 9. That the applicant was also charged before the Chief Magistrate Court at Machakos with another the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual offences Act No. 3 of 2006 vide SOA Criminal Case File No. SOA 188 of 2019 end sentenced to twenty (20) years by Hon. J. Kituku SPM on 4th September, 2025. 10. That the totality of his sentence which is thirty-five (35) years imprisonment is excessively harsh and considering the totality principle as envisaged under rule 1.2.5 of the Sentencing Policy Guideline 2023. 11. That the principle of totality comes into play where there is a sentence for multiple offences. The principle requires the court to craft a global sentence of all offences that is not excessive. If the total sentence is excessive the court must adjust the sentence so that the **"total sentence is proper".** 12. Therefore, the applicant seeks consolidation of his files and to allow the sentences to run concurrently in respect to totality principle starting from the date of arrest. 13. The application was canvassed by way of written submissions and both parties filed and exchanged their respective submissions. 14. I have considered the Applicant’s instant application and the Parties’ submissions. I will consider whether the application is merited. 15. The Applicant admits that he was charged in SOA Criminal Case No. 23 of 2019 with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to fifteen (15) years imprisonment. He was again charged in SOA Criminal Case No. 188 of 2019 with defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act and sentenced to twenty (20) years imprisonment. 16. SOA Criminal Case no. 23 of 2019 and SOA Criminal Case No. 188 of 2019 are two separate files. These files are separate and are distinct with different circumstances. 17. The two files were tried and heard separately and separate convictions and sentences were arrived at by the two different trial courts. The said two sentences to run concurrently as the matters were heard and tried separately in two different files. 18. Concurrent sentences apply when the offences arise from the same transaction in which the offences were committed. In this case, the two sexual offences were separate, with separate incidences each intricate from each other. Therefore, the Applicant cannot benefit from concurrent sentences in the circumstances of this application. 19. Section 135 of the Criminal Procedure Code provides for joinder of charges as follows: ***"any offences, whether felonies or misdemeanours, may be charged together in (he same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character. "*** 1. The two cases referred to here are not of the same circumstances. 2. The Applicant refers to the **"Principle of Totality"**. The principle of totality is a legal, ethical, and philosophical concept emphasizing that the whole is more important than its parts. "The Principle of Totality in law requires that combined sentences for multiple offenses are just and proportionate. 3. The principle of totality only applies in situations where the offences happened in the same transaction and thus were consolidated for purposes of the trial and upon determination sentences were issued on that same case. 4. The Principle of Totality does not apply in this case where there were two separate distinct files. 5. This Court has no jurisdiction to order the two cases to be consolidated. The offences arose from different transactions and the cases were heard separately by two different trial courts and determined separately. 6. Accordingly, the Applicant’s application dated 11th November 2025 is without merit and the same is dismissed in its entirety. 7. Right of Appeal, 14 days. This miscellaneous file is closed. RULING DATED & SIGNED AT MACHAKOS THIS 1ST JULY 2026 **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 1ST JULY 2026 In the presence of :