[1992] KEHC 102 (KLR)
The court found that, although the convictions were proper due to unequivocal pleas of guilty, the sentencing approach was flawed. The trial court failed to consider that the sentences in the three files could be ordered to run concurrently under section 37 of the Penal Code, especially given the relatively low...
Source-derived case information.
- Citation
- [1992] KEHC 102 (KLR)
- Parties
- Appellant: Etwale; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 107 of 1989
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Legal Topics
- Sentencing Principles, Concurrent and Consecutive Sentences, Corporal Punishment, Burglary, Office Breaking
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Etwale
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences imposed in the three criminal cases should run concurrently or consecutively.
- 2 Whether the corporal punishment awarded was manifestly excessive given the circumstances and value of the stolen items.
Ratio Decidendi
The court found that, although the convictions were proper due to unequivocal pleas of guilty, the sentencing approach was flawed. The trial court failed to consider that the sentences in the three files could be ordered to run concurrently under section 37 of the Penal Code, especially given the relatively low value of the stolen items and the nature of the offences. The aggregate sentence of 13½ years imprisonment and 10 strokes of corporal punishment was manifestly excessive. The High Court exercised its discretion to reduce the corporal punishment to one stroke per charge and ordered that the sentences in criminal cases No.152 of 1989 and 153 of 1989 run concurrently with the sentence...
Court Disposition
sentence varied
Orders
- Corporal punishment in criminal case No.152 of 1989 is reduced to one stroke only.
- Corporal punishment in criminal case No.151 of 1989 and in criminal case No.153 of 1989 is reduced to one stroke on each limb of the charge in each case.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
Etwale v Republic
High Court, at Mombasa
Wambilyangah J
March 4, 1992,
Wambilyangah J delivered the following Judgment.
The appellant was convicted and sentenced in 3 court files as follows:-
(a) In criminal case No.151/89 where the charge was Burglary and stealing contra to six years imprisonment and two strokes on each limb The sentences were ordered to run concurrently.
(b) In criminal case No. 152/89 the charge was office breaking and committing a felony contrary to section 306/(a) of the Penal Code and the sentenced was 4 years and 2 strokes.
(c) In criminal case No. 153/89 the charge was Burglary and stealing contra s.s 304(2) and 279(b) of the Penal code and the sentence on each limb was 3½ years imprisonment and 2 strokes of the cane.
The sentences were to run concurrently. As the conviction in each case was recorded after an unequivocal plea of guilty no criticism can validly be made against it. With regard to the sentence, the fact that sentences in one file were not ordered to be served concurrently with those imposed in the other files, it meant that sentence each file was to be served separately i.e. consecutively. See s.37 of the Penal Code. The effect would be that the appellant would serve a total of 13½ years imprisonment and receive 10 strokes of corporal punishment. Under the same section 37 the court is empowered to order that sentences like these ones be served concurrently. When viewed objectively the sentences in CR. Case No.152 of 1989 can be said to be manifestly excessive as the value of the items stolen was relatively low. The sentence awarded by other courts for similar offence may be as low as one year’s imprisonment and 1 stroke of cane. It is therefore my considered view that there were no good grounds for leaving the sentences to be served consecutively. Accordingly I make the following orders.
1. Corporal punishment in criminal case No.152 of 1989 is reduced to one stroke only; corporal punishment in criminal case No. 151 of 1989 and in CR. Case 153 of 1989 is similarly reduced to one (1) stroke on each limb of the charge (in each case).
2. The imprisonment term in criminal cases No.152 of 1989 and 153 of 1989 to run concurrently with the term (of six years) in CR. Case No.151 of 1989.
The ultimate result is that the appellant will serve a total of six years imprisonment with 5 strokes of cane. That is my order.