Leonard Kiburu Kimunya v Republic [2017] KEHC 3208 (KLR)
- Citation
- [2017] KEHC 3208 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- DB Nyakundi
- Case number
- Revision Case 3 of 2017
- Language
- English
More details
- Court
- High Court
- Panel
- DB Nyakundi
- Case number
- Revision Case 3 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the trial magistrate's order for sentences in default of fine to run concurrently was not specific and, in law, such sentences cannot be ordered to run concurrently. However, since the applicant had already served close to one year in custody and the offences arose from the same transaction, no injustice had been occasioned by the order. The High Court declined to interfere with the trial court's order or substitute it with consecutive sentences, finding the period served sufficient and dismissing the request for amendment.
Court disposition
application dismissed
Orders
- The request to amend the order to read concurrent is hereby dismissed.
02
Material facts
Parties
Leonard Kiburu Kimunya
ApplicantRepublic
RespondentAmounts and remedies
- Total Fine Imposed: KES 210,000
- Fine Per Count: KES 70,000
03
Procedural history
Posture
Criminal Revision / Ruling
04
Questions and positions
Legal issues
- 01
Whether the trial magistrate erred in ordering sentences of imprisonment in default of fine to run concurrently.
- 02
Whether the High Court should revise the sentence order to specify consecutive or concurrent terms.
Party arguments
- Applicant
- The applicant, through the officer in charge, sought revision of the trial magistrate's order that sentences in default of fine run concurrently, arguing that the order was not specific and potentially unlawful.
- Respondent
- The respondent did not file a substantive argument but the court considered the record and the law regarding concurrent and consecutive sentences in default of fine.
05
Court’s reasoning
Legal principles
- 01
Section 37 of the Penal Code
A sentence of imprisonment in default of payment of a fine cannot be made to run concurrently with any other sentence.
- 02
Sections 362, 364, 380, and 382 of the Criminal Procedure Code
The High Court's revisionary jurisdiction is guided by whether the order has occasioned injustice or is illegal or improper.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the trial magistrate's order for sentences in default of fine to run concurrently was not specific and, in law, such sentences cannot be ordered to run concurrently. However, since the applicant had already served close to one year in custody and the offences arose from the same transaction, no injustice had been occasioned by the order. The High Court declined to interfere with the trial court's order or substitute it with consecutive sentences, finding the period served sufficient and dismissing the request for amendment.
Obiter and limits
- The law on concurrent sentences is exclusively for offences under the same transaction.
- A sentence of imprisonment in default of a fine cannot be made to run concurrently with any other sentence.
Court disposition
application dismissed
- The request to amend the order to read concurrent is hereby dismissed.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAJIADO
APPELLATE SIDE
HIGH COURT REVISION NO. 3 OF 2017
(From conviction and sentence in Criminal
Case No. 158 of 2016 of the Chief Magistrate’s Court at Ngong)
LEONARD KIBURU KIMUNYA.................................APPLICANT
- VERSUS -
REPUBLIC.............................................................RESPONDENT
RULING
I am in receipt of a letter dated 10/8/2017 regarding CR Case No. 158 of 2016 between Republic v Leonard Kiburu Kimunya. The complaint by the officer is in respect charge in request to the order on sentence by the trial magistrate.
The background of the matter is that the applicant was indicted with three counts contrary to section 387(a) of the penal code. The applicant admitted the charges. He was convicted on his own plea of guilty and sentenced to a fine of Ksh. 70,000/= on each count in default 1 year imprisonment. A further order by the trial magistrate was that the sentences to run concurrently.
I have perused the record and the application for revision and filed through the officer in charge. The law on concurrent sentences is exclusively for offences under the same transaction. However, in this case the learned trial magistrate ordered fines and in default a term of imprisonment to run concurrently.
The principle of law is that a sentence of imprisonment in default of a fine cannot be made to run concurrently with any other sentence. The trial magistrate order is therefore not specific by the word sentence to run concurrently. The record further reveals that the applicant did not pay the fine imposed totaling to Ksh. 210,000/=. He has served a term of imprisonment close to one year since 21/10/2016.
In the present application and being guided by section 37 of the Penal Code and section 380 and 382 of the Criminal Procedure Code, I am of the view that the order has not occasioned an injustice. I would not therefore interfere with the order by substituting it with consecutive orders. The period the applicant has been in custody is sufficient enough since the offences arose from the same transaction.
The request to amend the order to read concurrent is hereby dismissed.
Dated, delivered and signed in open court at Kajiado on 4/8/1017
..........................
R. NYAKUNDI
JUDGE
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.