[2013] KEHC 2001 (KLR)
The court held that although the appellant was convicted on two alternative counts of handling stolen property on different dates, both offences were related to a single case of burglary and stealing. Applying section 37 of the Penal Code, the court found that the sentences should have run concurrently, not...
Source-derived case information.
- Citation
- [2013] KEHC 2001 (KLR)
- Parties
- Appellant: Joseph Abtalia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 184 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; sentence varied to run concurrently.
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Principles, Handling Stolen Property, Concurrent Vs Consecutive Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Abtalia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in ordering the sentences for handling stolen property to run consecutively instead of concurrently.
- 2 Whether the offences, though committed on different dates, were related to a single transaction justifying concurrent sentences.
Ratio Decidendi
The court held that although the appellant was convicted on two alternative counts of handling stolen property on different dates, both offences were related to a single case of burglary and stealing. Applying section 37 of the Penal Code, the court found that the sentences should have run concurrently, not consecutively. The trial court's order for consecutive sentences was therefore incorrect. The appellate court varied the sentence to run concurrently, reducing the total imprisonment term from ten years to five years. The appeal succeeded only to the extent of altering the sentence from consecutive to concurrent terms.
Court Disposition
Appeal allowed in part; sentence varied to run concurrently.
Orders
- The sentences for the 1st and 3rd alternative counts of handling stolen property shall run concurrently, not consecutively.
- The appellant will serve five years imprisonment instead of ten years.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 184 OF 2011
JOSEPH ABTALIA …......…...............................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 214 of 2011 of the Senior Resident Magistrate's Court at Taveta – Hon. C.N. Ndegwa - SRM)
JUDGMENT
JOSEPH ABTALIA hereinafter referred to as the Appellant was Convicted and Sentenced to ten (10) years imprisonment on 1st and 3rd alternative counts of handling stolen property contrary to section 322(2) of the Penal Code. It was ordered that the Sentence do ran consecutively.
Section 37 of the Penal Code provides,
“where a person after Conviction for an offence is Convicted of another offence, either before Sentence is passed upon him under the first Conviction or before the expiration of that Sentence, any Sentence, there than a Sentence of death, which is passed upon him under the subsequent Conviction shall be extended after the expiration of the former Sentence, unless the Court directs that it shall be executed concurrently with the former Sentence or any part thereof”.
In the present case the handling of the stolen property though on two different dates was related to one case of burglary and stealing. The Sentences therefore ought to have run concurrently but not consecutively.
The Sentence is therefore varied and or altered to read concurrent sentence but not to run consecutively.
The effect is that the appellant will serve five years imprisonment but not ten years imprisonment.
To that extent only does this appeal succeed.
Judgment delivered dated and signed this 9th day of October, 2013.
…...................
M. MUYA
JUDGE
9TH OCTOBER, 2013
In the presence of:-
Learned state Counsel Miss Mwaura
The Appellant present
Court clerk Musundi