[2019] KEHC 8480 (KLR)
The court found that the offences for which the appellant was convicted in the two criminal cases were committed on different dates and constituted separate transactions. Applying the legal test for 'same transaction,' the court held that the sentences could not run concurrently. The trial court had considered the...
Source-derived case information.
- Citation
- [2019] KEHC 8480 (KLR)
- Parties
- Appellant: John Njeru Nyaga alias John Kariuki Wangithi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 42 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Wildlife Offences, Sentencing Principles, Concurrent and Consecutive Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njeru Nyaga alias John Kariuki Wangithi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences in Machakos Chief Magistrates Court Criminal Case No. 781 of 2016 and No. 793 of 2016 should run concurrently or consecutively.
- 2 Whether the appellant, convicted for wildlife offences, is entitled to a non-custodial sentence based on mitigation.
Ratio Decidendi
The court found that the offences for which the appellant was convicted in the two criminal cases were committed on different dates and constituted separate transactions. Applying the legal test for 'same transaction,' the court held that the sentences could not run concurrently. The trial court had considered the appellant's mitigation, but the appellant was not a first offender, and granting a non-custodial sentence would undermine the protection of wildlife and the ecosystem. The appellate court found no basis to interfere with the trial court's discretion in sentencing and affirmed the custodial sentence imposed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence by the trial court is affirmed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CRIMINAL APPEAL NO. 42 OF 2018
JOHN NJERU NYAGA aliasJOHN KARIUKI WANGITHI......APPELLANT
VERSUS
REPUBLIC..........................................................................................REPUBLIC
(Appeal against the sentence by Hon. A.G. Kibiru (C.M.) in Machakos Chief Magistrates Court Criminal Case No. 781 of 2016 delivered on 13th November, 2017)
JUDGEMENT
1. The appellant was charged and convicted for the offence of engaging in hunting for Bush meat trade contrary to section 98 as read with section 105 of the Wildlife Conservation and Management Act of 2013 and sentenced to three (3) years imprisonment.
2. Aggrieved by the said conviction and sentence the appellant lodged this appeal. What is raised in the appellant’s appeal and submissions is essentially mitigation and not grounds of appeal. The appellant has expressed that he is remorseful and has stated that he is a first offender. That he has parental responsibility and urged this court to exercise its discretion to set aside the sentence as meted upon him and be granted non-custodial sentence. The appellant was convicted in Machakos Chief Magistrates Court Criminal Case No. 793 of 2016 for similar charges and urged this court that the sentence in the said suit be ordered to run concurrently with those in Machakos Chief Magistrates Court Criminal Case No. 781 of 2016.
3. The appellant here does not appeal against the conviction and has only submitted on the sentence. Under the said circumstance, I find no need to delve into the facts of the case. The appellant specifically urged that the sentence in the mentioned cases do run concurrently.
4. The particulars of the charge the appellant faced and for which he was convicted was that the appellant on 12th August, 2016 at Portland area within Machakos County, was found in possession of 2 bows, 18 poisonous arrows, 10 arrow sticks, 4 knives, 2 sharpening files, 1 machette and 1 weighing scale for purposes of hunting wildlife for bush meat trade in contravention of the said Act. In Criminal Case No. 793 of 2016 he was charged with the same offence but whose particulars were that the appellant on 28th December, 2015 at Game Ranch area within Machakos County, was found in possession of poisonous arrows for the purposes of hunting wildlife for bush meat trade in contravention of the said Act. Clearly, the two are different transactions whose sentences cannot run concurrently.
5. Sentencing is normally at the discretion of the trial court. An appellate court should therefore be slow in interfering with the said discretion unless there are reasonable grounds to do so. If an accused person commits a series of offences at the same time in a single act, a concurrent sentence should be given. If separate and distinct offences are committed in different criminal transactions, despite the counts being in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.
6. The Court of Appeal in William Kimani Ndichu v. Republic [2015] eKLR observed as follows with regard to the meaning of the phrase same transaction thus:
“The former Court of Appeal has defined the phrase “same transaction” in Rex v Saidi Nsabuga s/o Juma and another (1941) 8 EACA 81 and revisited it again inNathani v R (1965) EA 777, where the court said that the proper construction of the phrase “same transaction” is 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 the 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.””
Applying the test, the offences the appellant herein faced cannot be said to have arisen from the same transaction bearing in mind the fact the same were committed on different dates. The sentence cannot therefore run concurrently.
7. The trial court in metting the sentence considered the appellant’s mitigation. Although the appellant claims to be a first offender, he is not. In view of that, I find him to be a menace to wildlife. Giving him a non-custodial sentence would be doing an injustice to the ecosystem. In the end, this appeal has no merit and therefore fails. The appeal is dismissed. The sentence by the trial court is affirmed.
It is so ordered.
Dated and delivered at Machakos this 9th day of April, 2019.
D.K.KEMEI
JUDGE