[2017] KEHC 5250 (KLR)
The court found that the offences for which the appellant was convicted—causing grievous harm, illegal possession of a firearm, and illegal possession of ammunition—arose from the same transaction. Citing established appellate authority, the court held that the sentences for such offences should run concurrently...
Source-derived case information.
- Citation
- [2017] KEHC 5250 (KLR)
- Parties
- Appellant: Kimani Leleruk; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 98 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part
- Judges
- MM Kasango
- Legal Topics
- Sentencing Principles, Concurrent Sentences, Grievous Harm, Illegal Possession of Firearm, Illegal Possession of Ammunition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimani Leleruk
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in ordering the sentences for the three counts to run consecutively instead of concurrently.
- 2 Whether the sentence imposed was excessive or warranted interference by the appellate court.
Ratio Decidendi
The court found that the offences for which the appellant was convicted—causing grievous harm, illegal possession of a firearm, and illegal possession of ammunition—arose from the same transaction. Citing established appellate authority, the court held that the sentences for such offences should run concurrently unless exceptional circumstances exist. There was no basis for interference with the length of the sentence (7 years on each count), but the trial court erred in ordering the sentences to run consecutively. The appellate court therefore allowed the appeal to the extent of ordering that the sentences run concurrently, not consecutively.
Court Disposition
appeal allowed in part
Orders
- The appellant's sentences of 7 years on each of the three counts shall run concurrently.
- The appeal succeeds to the extent of the above order.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL NO. 98 OF 2016
KIMANI LELERUK ……………….....……… APPELLANT
Versus
REPUBLIC ………………………………… RESPONDENT
(Being an appeal from the original conviction and sentence in
Maralal Principal Magistrate’s Court Criminal Case No. 617 of 2015
by Hon. C N Ndegwa – Principal Magistrate on 8th March 2016 )
JUDGMENT
1. KIMANI LELERUK was charged and convicted before the Principal Magistrate’s Court at Maralal for the offences of Causing grievous harm Contrary to Section 234 of the Penal Code Cap 63,and the offence of being in illegal possession of firearm Contrary to Section 89 (1) of Cap 63 on the second count, and being in illegal possession of ammunition Contrary to Section 89 (1) of Cap 63 on count three.The trial court sentenced Kimani on all Counts to 7 years respectively. All those sentences were to run consecutively.
2. Kimani was aggrieved by the conviction and sentence but at the hearing of his appeal he abandoned his appeal against conviction and proceeded with his appeal against sentence.
3. Kimani by his written submissions requested the court to reduce his sentence and to give him a second chance in life; he submitted that he had reformed and would not be a repeat offender; and that he is married and that his single mother relies on him.
4. In his oral submissions before court he requested that this court does order his sentences to run concurrently.
5. Learned Principal Prosecution Counsel Mr Tanui submitted that the 7 years on each count was commensurative of the offences. He however submitted that the three counts were of the same transaction and the sentence thereof should have run concurrently.
6. The prosecution’s case was that Kimani shot the complaint on both legs while she gathered firewood. The complainant was taken to hospital and Kimani was arrested while in possession of an AK47 firearm and ammunition. Evidence was tendered that the shots to the complainant were from the firearm found with Kimani. It follows from that narration that the counts were of the same transaction. As correctly submitted by Mr Tanui the sentences of the three counts ought to have run concurrently.
7. The court of appeal in the case, PETER MBUGUA KABUI – V- REPUBLIC [2016] eKLR held that:
“In the case of Sawedi Mukasa s/o Abdulla Aligwaisa [1946] 13 EACA 97, the then Court of Appeal for Eastern Africa in a judgment read by Sir, Joseph Sheridan stated that the practice is where a person commits more than one offence at the same time and in the same transaction, save in very exceptional circumstances, to impose concurrent sentences. That is still good practice.
As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single
Act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.”
8. It follows that the correct sentence that the trial should have meted out was concurrent sentence. The 7 years sentence however do not attract interference of this court. This court orders that the appellant’s sentence by the trial court of 7 years on each of the three counts shall run concurrently. To that extent appellant’s appeal succeeds.
9. It is so ordered.
DATED AND DELIVERED THIS 7th DAY OF JUNE 2017
MARY KASANGO
JUDGE
CORAM:
Before Justice Mary Kasango
Court Assistant – Njue/Mariastella
Appellant: Kimani Leleruk ……………….………….
For the State: ….............................................
Language …………………………………………………….
COURT
Judgment delivered in open court.
MARY KASANGO
JUDGE