Dushimimana Dani v Republic [2017] KEHC 3220 (KLR)
- Citation
- [2017] KEHC 3220 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- DAS Majanja
- Case number
- Criminal Revision 51 of 2017
- Language
- English
More details
- Court
- High Court
- Panel
- DAS Majanja
- Case number
- Criminal Revision 51 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The High Court found that the offences for which the applicant was convicted arose from the same set of facts and constituted a single transaction. The trial magistrate erred by imposing consecutive sentences without providing justification, contrary to the Sentencing Policy Guidelines and established case law. The court held that the sentences should have run concurrently and, in the interests of justice, reduced the sentences to time served and ordered the applicant's repatriation.
Court disposition
revision allowed
Orders
- The consecutive sentences imposed by the trial magistrate are set aside and substituted with an order that the sentences run concurrently.
- The sentences are reduced to time served.
- The accused is to be repatriated to his country of origin forthwith.
02
Material facts
Parties
Dushimimana Dani
ApplicantRepublic
RespondentAmounts and remedies
- Fine on Count 1: KES 100,000
- Fine on Count 2: KES 50,000
03
Procedural history
Posture
Criminal Revision / Ruling
04
Questions and positions
Legal issues
- 01
Whether the trial magistrate erred in imposing consecutive sentences for offences arising from the same transaction.
- 02
Whether the sentences should have been ordered to run concurrently in accordance with the Sentencing Policy Guidelines.
Party arguments
- Applicant
- The applicant contended that the offences arose from the same set of facts and therefore the sentences should have run concurrently, not consecutively. The applicant also argued that the trial magistrate failed to provide reasons for imposing consecutive sentences, contrary to the Sentencing Policy Guidelines and established case law.
- Respondent
- The respondent did not provide substantive arguments opposing the application for revision, and there is no record of opposition to the applicant's submissions regarding the propriety of the consecutive sentences.
05
Court’s reasoning
Legal principles
- 01
Sentencing Policy Guidelines, para 7.13
Where offences emanate from a single transaction, sentences should run concurrently unless there are multiple transactions or victims.
- 02
Sentencing Policy Guidelines, para 7.14
The discretion to impose concurrent or consecutive sentences lies with the court, but reasons must be provided.
- 03
Sawedi Mukasa s/o Abdulla Aligwaisa v R [1946] 13 EACA 97; Peter Mbugua Kabui v Republic NRB CA Criminal Appeal No. 66 of 2015 [2016] eKLR
Appellate courts have held that sentences for offences arising from the same facts should run concurrently.
06
Ratio, limits and disposition
Ratio decidendi
The High Court found that the offences for which the applicant was convicted arose from the same set of facts and constituted a single transaction. The trial magistrate erred by imposing consecutive sentences without providing justification, contrary to the Sentencing Policy Guidelines and established case law. The court held that the sentences should have run concurrently and, in the interests of justice, reduced the sentences to time served and ordered the applicant's repatriation.
Obiter and limits
- The Sentencing Policy Guidelines are binding on subordinate courts and must be adhered to in the exercise of sentencing discretion.
- Failure to provide reasons for imposing consecutive sentences is an error in principle.
Court disposition
revision allowed
- The consecutive sentences imposed by the trial magistrate are set aside and substituted with an order that the sentences run concurrently.
- The sentences are reduced to time served.
- The accused is to be repatriated to his country of origin forthwith.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CRIMINAL REVISION NO. 51 OF 2017
BETWEEN
DUSHIMIMANA DANI...............................APPLICANT
AND
REPUBLIC............................................RESPONDENT
(Being revision of the order of Hon. C. Yalwala, PM dated 5th July 2017 in Criminal Case No. 386 of 2017 at the Chief Magistrates Court at Kisumu)
RULING
1. This ruling is made under the supervisory jurisdiction of the High Court in criminal cases provided in sections 362 to 366of the Criminal Procedure Code. Section 362 specifically provides that:
362. 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.
2. The accused, DUSHIMIMANA DANI, faced the following counts before the trial court. In Count 1 he was charged with being unlawfully present in Kenya contrary to section 53(1) J and 53(2) of theKenya Citizenship and immigration Act 2011. The particulars were that on 4th July 2017 at Patel flats area in Kisumu within Kisumu County, being a Rwandese national, he was found to be unlawfully present in the country in that he had no valid immigration status in contravention of the Kenya Citizenship and Immigration Act 2011.
3. In Count 2, the accused was charged with engaging in business without being authorized to do so by a work permit or a pass, contrary to section 53(1) m as read withsection 53(2)of theKenya Citizenship and Immigration Act2011. The particulars were that on 4th July 2017 at Kisumu town within Kisumu County, being Rwandese national, he was found engaging in hawking business without being authorized to do so by permit or pass in contravention of the Kenyan Citizenship and Immigration Act 2011.
4. The appellant was convicted on his own plea of guilty and sentenced to pay a fine of Kshs 100,000. 00 or in default one-year imprisonment on Count 1 and on Count 2 he was sentenced to pay a fine of Kshs 50,000. 00 or serve 6 months’ imprisonment. The trial magistrate ordered that the sentences run consecutively.
5. The Sentencing Policy Guidelines provide for imposition of concurrent and consecutive sentences as follows:
7. 13 Where the offences emanate from a single transaction, the sentences should run concurrently. However, where the offences are committed in the course of multiple transactions and where there are multiple victims, the sentence should run consecutively.
7. 14 The discretion to impose concurrent or consecutive sentences lies in the court.
6. This Guideline is supported by several authorities among them Sawedi Mukasa s/o Abdulla Aligwaisa v R [1946] 13 EACA 97 and Peter Mbugua Kabui v Republic NRB CA Criminal Appeal No. 66 of 2015[2016]eKLR.
7. Since the accused was charged with offences flowing from the same set of facts, I find and hold that the trial magistrate erred in imposing consecutive sentences when the offence was clearly committed as one transaction. In his sentencing notes, the trial magistrate did not explain why consecutive sentences were necessary in this case.
8. I set aside the consecutive sentences and substitute the same with an order that the sentences run concurrently. In addition, I reduce the sentences to time served and direct that the accused be repatriated to his country of origin forthwith.
DATED and DELIVERED at KISUMUthis 6thday of October2017.
D. S. MAJANJA
JUDGE
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