[2023] KEHC 24791 (KLR)

Kipkemoi v Republic (Criminal Appeal E013 of 2023) [2023] KEHC 24791 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24791 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E013 of 2023

JR Karanja, J

November 2, 2023

Between

Ronald Kipkemoi

Appellant

and

Republic

Respondent

Judgment

1. The appellant, Ronald Kipkemoi, and three others appeared before the Senior Resident Magistrate at Kericho charged with two counts of Burglary, contrary to Section 304 (2) of the Penal Code (i.e counts 2 and 4). These were accompanied by alternative counts of handling stolen goods contrary to Section 322 (2) of the Penal Code.

2. It was alleged that on the material night of the 4th/5th November 2021, the appellant and others burgled and stole assorted items from the dwelling houses of Emmanuel Lelgo and Sofia Chebet Maina or that the appellant separately and jointly with others dishonestly handled the complainants’ properly knowing or having reason to believe them to be stolen property.

3. After a full trial, the Appellant was convicted on the main counts and sentenced to five (5) years imprisonment on counts 1 and 3, and to seven (7) years imprisonment on count 2. He was discharged in respect to count 4. The sentences were to run consecutively.

4. Being dissatisfied with conviction and sentences, the appellant preferred the present appeal on the basis of the grounds contained in his petition of appeal dated 14th August 2023. At the hearing of the appeal he relied on the same grounds and generally submitted that the evidence adduced by PW1, PW2 and PW3 was insufficient for failure to identify the culprit burglars and/or handlers of the stolen property.

5. These grounds were essentially on conviction but were abandoned by the appellant while responding to the respondent’s opposition to the appeal through the Learned Prosecution Counsel, M/s Aseda.The appellant instead opted to convert the appeal to be one on sentence only rather than on conviction and sentence. His main complain in that regard was that the sentence was excessive in as much as it was ordered to run consecutively by the trial court.

6. This court finds that complaint meritable for the simple reason that compelling factors did not arise for imposition of a consecutive sentence when the appellant’s criminal liability regarding the burglary and theft of household goods arose from a single criminal transaction. The offences of burglary and stealing were intertwined and ought to have been framed as one single transaction of burglary and stealing instead of being separated into two transactions of burglary and stealing.

7. To that extent, the charges were defective for want of duplicity. However, the propriety or otherwise of the charges was not an issue raised in this appeal and apparently in the trial.It is the court’s opinion that the imposition of a consecutive sentence by the trial court was not justified by the circumstances of the case and in effect, rendered the whole sentence against the appellant as too excessive as to call for its interference at this stage.

8. Consequently, the present appeal as relates to the sentence is allowed to the extent that the sentences imposed on court 1, 2 and 3 shall run concurrently rather than consecutively.Ordered accordingly.

[DATED AND DELIVERED THIS 2ND DAY OF NOVEMBER, 2023. ]J. R KARANJAHJUDGE