https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8338

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL MISC. APPL. NO. E004 OF 2026** **HILLARY LIDIOLO SHINAVULA ……………………………….………… APPLICANT** **VERSUS** **REPUBLIC ……………………………………………………….………… RESPONDENT** **Coram: Before Justice R. Nyakundi** **Mr. Leina Davies for the State** **RULING** 1. The Applicant herein was charged with others not before this Court with two (2) counts of the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 (Laws of Kenya). He was convicted by the trial Court and sentenced to fifty (50) years imprisonment on each count. 2. Being dissatisfied with the said decision, he lodged an appeal herein, HCCRA No E015 of 2023 where this Court upheld his conviction but reduced his sentence of fifty (50) years to twenty-five (25) years imprisonment for each count. 3. On 20th January 2026, he filed undated Notice of Motion application herein seeking an order that his sentence of twenty-five (25) years granted to him in HCCRA No E015 of 2023 and his twenty (20) years sentence granted to him in Vihiga Criminal Case No 1210 of 2018 to run concurrently and from the date of his arrest. 4. He invoked Section 12, 14 and 333(2) of the Criminal Procedure Code, Section 37 of the Penal Code and Paragraph 5.1.21 of the Sentencing Policy Guidelines (Revised 2023) and argued that the offences happened under the same transaction or criminal intent. 5. He placed reliance on the case of William Kimani Ndichu vs Republic [2015] eKLR where the meaning of the phrase, “same transaction” was defined. He added that he had been rehabilitated, reformed and socially re-adapted and that he was remorseful. 6. He pointed out that he was arrested, charged and convicted of two (2) offences of robbery with violence, one at Hamisi Cr No 1092 of 2018 and Vihiga CRC No. 1012 of 2018. He appealed the case from Hamisi whereby this Court reduced his sentence to twenty-five (25) years where as in his case in Vihiga, he was sentenced to twenty (20) years imprisonment. He prayed that the said two (2) sentences run concurrently and from the date of his arrest. 7. Both parties did not file Written Submissions. This Ruling is therefore based on the Applicant’s application and his affidavit evidence. **Decision** 1. Section 14 (1) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides as follows:- “Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the Court may sentence him, for those offences, to the several punishments prescribed therefore which the Court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the Court may direct, unless the Court directs that the punishments shall run concurrently.” 1. The Court of Appeal Court reiterated this provision in the case of Peter Mbugua Kabui vs Republic [2016] eKLR. In the case of Republic vs Saidi Nsabuga S/O Juma & Another [1941] EACA which was cited in Nathan vs Republic [1965] EA 777, the Court of Appeal emphasised the phrase “same transaction rule” where it held that if a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose, or by relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction. 2. The Sentencing Policy Guidelines, 2023 further addressed the question of concurrent and consecutive sentences. It provided as follows:- 2.3.24 A concurrent sentence will normally be appropriate where the offences arise out of the same incident or facts. E.g., poaching of several animals that vary in the degree of protection they are afforded under the law; a burglary ‘spree’ of several properties committed in one night; fraud and associated forgeries, or a dangerous driving incident where multiple victims are injured as a result of one offence of dangerous driving e.g., driving into a bus stop. 2.3.25 A consecutive sentence will normally be appropriate where the offences arise out of unrelated facts or incidents e.g., attempting to obstruct the course of justice in relation to an unrelated offence; where the defendant is convicted of dealing in drugs and also possession of a firearm upon arrest – the firearm offence is not an intrinsic part of the drugs matter and requires separate recognition, or where the accused commits a theft on one occasion and an assault on a different victim on another occasion. 1. In this instant case, this Court had to retrieve the Court file for Vihiga Criminal Case No 1012 of 2018 from its Archives. A perusal of the two (2) Charge Sheets of the cases in Hamisi Criminal Case No 1092 of 2018 and Vihiga Criminal Case No 1012 of 2018, showed that the offences were committed on different days against different victims. These were multiple transactions and multiple victims and consequently, the sentences ought to have run consecutively. 2. The particulars of the first case in Hamisi was that on the 2nd day of June 2018 at Musasa Trading Centre, Shaviringa Location, Hamisi Sub-County within Vihiga County, the Applicant jointly with others not before Court, being armed with dangerous weapon namely AK-47 rifle, robbed Everline Kimuli cash Kshs 70,000/=, 3 mobile phones make Huawei, several Safaricom scratch cards Bamba 100 pack No 4959840 and during the time of such robbery shot and wounded Jackton Ifedha and James Shirongo. 3. On the other hand, the particulars of the second case in Vihiga was that on the 1st day of May 2018 at 6.50pm at Esibuye Shopping Centre, Emuhaya Sub-County within Vihiga County jointly with others not before Court while being armed with dangerous weapon namely AK 47 rifle robbed Samson Olindi off cash Kshs 505,000/= three mobile phones make sumsang valued at Kshs 9999/=, infinix valued at 10,000/= and Nokia mobile valued at 10,100/= all valued at Kshs 535,099/= and immediately before or immediately after the time of such robbery used a personal violence to the said Samson Olindi. 4. It was therefore the view of this Court that the consecutive sentences that were meted out to the Applicant herein were not illegal rendering the present application devoid of merit. **Disposition** 1. For the foregoing reasons, the upshot of this decision was that the Applicant’s undated Notice of Motion application filed on 20th January 2026 was not merited and the same be and is hereby dismissed. 2. It is so ordered. **DATED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 15TH** **DAY OF JUNE 2026** **…………………………………….** **R. NYAKUNDI** **JUDGE**