[2024] KEHC 13405 (KLR)
The High Court found that the trial court's sentencing order was ambiguous as it was unclear whether the three-year sentences on each count were to run concurrently or consecutively. The court held that in cases of ambiguity, the benefit should go to the accused. Accordingly, the appellate court set aside the...
Source-derived case information.
- Citation
- [2024] KEHC 13405 (KLR)
- Parties
- Appellant: Yona Wasai Lucheda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kapenguria
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E0118 of 2023
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- RPV Wendoh
- Legal Topics
- Sentencing Principles, Concurrent Sentences, Plea of Guilty, Stealing Motor Vehicle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yona Wasai Lucheda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was harsh and excessive.
- 2 Whether the trial court's sentencing order was ambiguous regarding concurrent or consecutive sentences.
- 3 Whether the appellant should benefit from ambiguity in the sentencing order.
Ratio Decidendi
The High Court found that the trial court's sentencing order was ambiguous as it was unclear whether the three-year sentences on each count were to run concurrently or consecutively. The court held that in cases of ambiguity, the benefit should go to the accused. Accordingly, the appellate court set aside the ambiguous sentence and imposed a clear sentence of three years imprisonment on each count, to run concurrently, resulting in a total term of three years. The appeal was allowed to this extent, and the sentence was ordered to commence from the date of the original sentence.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal is allowed to the extent that the ambiguous sentence is set aside.
- The appellant is sentenced to three years imprisonment on each count, sentences to run concurrently.
Full Case Text
Judgment text and source record
26 paragraphs
Lucheda v Republic (Criminal Appeal E0118 of 2023) [2024] KEHC 13405 (KLR) (25 October 2024) (Judgment)
Neutral citation: [2024] KEHC 13405 (KLR)
Republic of Kenya
In the High Court at Kapenguria
Criminal Appeal E0118 of 2023
RPV Wendoh, J
October 25, 2024
Between
Yona Wasai Lucheda
Appellant
and
Republic
Respondent
(Appeal arising out of conviction and sentence of Hon. B.O. ONDEGO (Senior Principal Magistrate) in Kapenguria Chief Magistrate’s Court Criminal Case No. E905 OF 2023 delivered on 10th November, 2023)
Judgment
1. Yona Wasai Lucheda was convicted on his own plea of guilty on three counts of stealing a motorcycle contrary to section 278(A) of the Penal Code.The particulars of the charges are that: -Count 1On the night of 12th and 13th September 2023 at Makutano Township, jointly with others not before the court, stole motorcycle KMFS 616V make TVS HLX worth Kshs.100,000/-, the property of Alex Juma.Count IIOn the 28th June 2023, at Embasi, Makutano Township, with others not before the court, stole a motorcycle KMGH 159S make Honda, worth Kshs.150,000/- the property of Krop Mariach.
2. In the alternative, he handled stolen property contrary to section 322(1)(2) of the Penal Code in that on 30th September, 2023 at Morita Trading Centre in Uganda, otherwise than in the cause of stealing, dishonestly received or retained a motorcycle KMGH 159S, Honda knowing or having reason to believe it to be stolen.Count IIIThat on 5th August, 2023 at unknown time in Makutano Township, West Pokot jointly with others not before the court, stole a motorcycle Reg. No. KMFZ 966P make Honda, the property of Jonathan Ptiyos Adungo.
3. In the alternative, he was said to have received or retained the said motorcycle KMFZ 966P at Nakapiripirit Centre in Uganda, knowing it to be stolen.
4. Upon pleading guilty, the appellant was sentenced to serve three years imprisonment on each count.
5. The appellant is dissatisfied with the sentence. He alleges that the same is harsh and excessive. He also raised issue with interpretation of the sentence; that from what the trial court stated that he was sentenced to three years on each count and they were to run concurrently. It is the appellant’s view that he should serve 3 years imprisonment.
6. The respondent filed submissions conceding the appeal. The prosecution counsel urged that the appellant should serve a total of 3 years imprisonment but not nine (9) years.
7. I have considered the grounds of appeal. When sentencing the appellant, the trial court said;“I order the accused to serve imprisonment for 3 years on each count separately. The sentences will run concurrently."
8. The court’s statement is unclear. It is not clear what the court meant by “3 years on each count separately”. It seems the prison understood the court’s order to mean that the appellant was to serve a total of nine (9) years imprisonment only.
9. When the court is sentencing on several counts, it must clarify whether the sentence will run concurrently or consecutively. If the sentences will run concurrently, it means they will run at the same time, together. If the sentences will run consecutively, it means, they will run one after the other. Since it was not clear from what the trial court said, I will find that the appellant should benefit from the ambiguity and serve a less punitive sentence.
10. In the end, I allow the appeal, set aside the ambiguous sentence. I hereby sentence accused to three (3) years imprisonment on each count and the sentences will run concurrently. The effect is that he will serve three years imprisonment. The sentence will commence on 10th November, 2023. The Appeal succeeds to that extent.It is so ordered
DELIVERED, DATED AND SIGNED AT KITALE THIS 25TH DAY OF OCTOBER, 2024. LADY JUSTICE R. WENDOH.Judgment delivered virtually in the presence of;-D. Majale for state - presentAppellant – presentJuma/Duke – Court Assistants