[2018] KEHC 6173 (KLR)
The trial magistrate erred by ordering the sentences to run consecutively without providing reasons, especially since both offences arose from the same transaction on the same day. The appellate court found that, in the absence of aggravating circumstances and given the unity of the transaction, the sentences should...
Source-derived case information.
- Citation
- [2018] KEHC 6173 (KLR)
- Parties
- Appellant: James Theuru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 102 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; consecutive sentences quashed; sentences to run concurrently; fines remain concurrent.
- Judges
- DAS Majanja
- Legal Topics
- Sentencing Principles, Malicious Damage to Property, Resisting Lawful Arrest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Theuru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in imposing consecutive sentences for offences arising from the same transaction.
- 2 Whether the sentence imposed was excessive or based on a wrong principle.
Ratio Decidendi
The trial magistrate erred by ordering the sentences to run consecutively without providing reasons, especially since both offences arose from the same transaction on the same day. The appellate court found that, in the absence of aggravating circumstances and given the unity of the transaction, the sentences should run concurrently. The fines imposed were not disturbed, but the custodial sentences were ordered to run concurrently rather than consecutively, correcting the error in principle by the trial court.
Court Disposition
Appeal allowed in part; consecutive sentences quashed; sentences to run concurrently; fines remain concurrent.
Orders
- The consecutive sentences imposed by the trial court are quashed.
- The appellant shall serve the 6 and 18 months’ sentences of imprisonment concurrently.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL APPEAL NO. 102 OF 2017
CORAM: D.S. MAJANJA J.
BETWEEN
JAMES THEURU............................APPELLANT
AND
REPUBLIC....................................RESPONDENT
(Being an appeal from the original conviction and sentenceof
Hon. G. Sogomo, SRMdate7thSeptember 2017
at thePrincipal Magistrate’s Courtat Tigania
in Criminal Case No. 1374 of 2012)
JUDGMENT
1. The appellant JAMES THEURU, was convicted on two counts; causing malicious damage to property contrary tosection 339 (1) of the Penal Code (Chapter 63 of the Laws of Kenya) where he was fined Kshs. 20,000/= and in default to serve 6 months’ imprisonment and the offence of resisting lawful arrest from a police officer contrary tosection 254 (b) of the Penal Code where he was fined Kshs. 50,000/= and sentenced to 18 months in default. Both sentences were to run consecutively.
2. Sentencing is an exercise of discretion and the appellate court will not interfere in the sentence unless it is shown that the trial court took into account an irrelevant factor, or that a wrong principle was applied or short of that, the sentence was so harsh or excessive that it manifests an error of principle (see Ogalo s/o Owuora v R [1954] EACA 270, Nilsson v R [1970] EA 599 and Wanjema v R [1971] EA 493).
3. I note from the proceedings that the incident subject to the charge took place on the same day that is 13th September 2012 and formed part of one transaction. Accordingly, the trial magistrate erred by giving a consecutive sentence without giving reasons.
4. Mr. Kimathi, counsel for the appellant, submitted that the sentence was excessive. I have looked at the sentencing notes and they disclose the fact that the appellant was not a first offender as he had been convicted of similar offences, a fact he admitted.
5. I therefore allow the appeal only to the extent that the consecutive sentences are quashed and the appellant shall serve the 6 and 18 months’ sentences of imprisonment concurrently. Payment of the fines shall remain concurrent.
DATED and DELIVERED at MERU this 29th day of May 2018.
D.S. MAJANJA
JUDGE
Mr L. Kimathi, Advocate for the appellant.
Mr Namiti, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.