[2014] KEHC 8845 (KLR)
The High Court found that the trial magistrate erred in principle by imposing consecutive sentences for counts 1 and 2 when all the offences were committed on the same night as part of a single transaction. There was no justification provided for the consecutive sentences, and the proper approach was to order that...
Source-derived case information.
- Citation
- [2014] KEHC 8845 (KLR)
- Parties
- Appellant: Dennis Okay Achiel; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 69 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Concurrent Sentences, Consecutive Sentences, School Breaking, Felony Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Okay Achiel
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in imposing consecutive sentences for offences arising from a single transaction.
- 2 Whether the sentence imposed was harsh and excessive.
Ratio Decidendi
The High Court found that the trial magistrate erred in principle by imposing consecutive sentences for counts 1 and 2 when all the offences were committed on the same night as part of a single transaction. There was no justification provided for the consecutive sentences, and the proper approach was to order that all sentences run concurrently. The appellate court therefore set aside the consecutive sentences and substituted them with concurrent sentences. As the appellant had already served the period equivalent to the concurrent sentences, he was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- Consecutive sentences for counts 1 and 2 are set aside and substituted with concurrent sentences.
- Appellant to be set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL APPEAL NO. 69 OF 2014
BETWEEN
DENNIS OKAY ACHIEL……….. …….. APPELLANT
AND
REPUBLIC ………...………….……... RESPONDENT
(Appeal from the original conviction and sentence in Criminal Case No. 1651 of 2006 at the Senior Resident Magistrates Court at Homa Bay, Hon. E. K. Mwaita , Ag SRM, dated 4th April 2007)
JUDGMENT
The appellant was convicted on a total of 10 counts of school breaking and committing a felony contrary to section 306(a) of the Penal Code (Chapter 63 of the Laws of Kenya). The offences were committed between 23rd and 24th December 2006 at Asumbi Girls Secondary School. The appellant broke into the school and stole several items belonging to the students.
He was tried and convicted on all the ten counts and sentenced to seven years imprisonment on all the counts. The learned magistrate ordered that the sentence on count 1 and 2 to run consecutively and those on counts 3 to 10 to run concurrently. The effect of the sentence is the appellant will serve 14 years in prison.
The appellant abandoned his appeal on conviction and urged that the sentence was harsh and excessive. Mr Oluoch, counsel for the State, conceded the appeal on the ground that the learned magistrate erred in imposing a concurrent sentence without any reason or explanation.
The appellate court is entitled to intervene in a sentence where there is an error of principle. In this case, all the offences were committed on one night and there was no reason given by the learned magistrate to impose consecutive sentences on the 2 counts when the offences proved were as a result of one transaction.
In the circumstances, the consecutive sentences for count 1 and 2 are set aside and substituted with concurrent sentences.
The appeal succeeds to that extent and since the appellant has served the 7 years imprisonment, he is set free unless otherwise lawfully held.
DATED and DELIVERED at HOMA BAY this 17th day of December 2014
D.S. MAJANJA
JUDGE