[2021] KEHC 9032 (KLR)
The court found that the trial magistrate acted within the law in sentencing the applicant to consecutive terms for the offences, as permitted by section 37 of the Penal Code. The sentences imposed were within the statutory limits, and the order for compensation to take precedence over fines was in accordance with...
Source-derived case information.
- Citation
- [2021] KEHC 9032 (KLR)
- Parties
- Applicant: Mohamed Ibrahim Mohamed; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 215 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Concurrent Sentences
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Principles, Concurrent and Consecutive Sentences, Revision Jurisdiction, Compensation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Ibrahim Mohamed
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Concurrent Sentences
Legal Issues
- 1 Whether the trial court erred in ordering the applicant's sentences to run consecutively rather than concurrently.
- 2 Whether there was any illegality, incorrectness, or impropriety in the lower court's sentencing orders.
Ratio Decidendi
The court found that the trial magistrate acted within the law in sentencing the applicant to consecutive terms for the offences, as permitted by section 37 of the Penal Code. The sentences imposed were within the statutory limits, and the order for compensation to take precedence over fines was in accordance with section 31 of the Penal Code. The applicant failed to demonstrate any error, illegality, or impropriety in the lower court's decision. Consequently, the application for concurrent sentences lacked merit and was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application dated 19.7.2019 is dismissed in its entirety.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CRIMINAL APPL. CASE NO.215 OF 2019
MOHAMED IBRAHIM MOHAMED .....................................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.......................................................RESPONDENT
RULING
This matter comes up for the application of the applicant MOHAMED IBRAHIM MOHAMED filed herein on 19. 7.2019. The same, brought under section 362 of the Criminal Procedure Code, basically seeks that this court do order that the sentences meted out against the applicant by the lower court do run concurrently. The applicant has sworn affidavit in support of the application.
The prosecution has objected to this application on grounds that the applicant had been convicted on upto 3 counts and given options of fines on each count, to run concurrently. That the court further ordered for compensation to take precedence over the fines.
I have considered the submissions of the parties. I have also perused and considered the proceedings of the lower court herein.
Section 362 of the Criminal Procedure Code empowers this court;
“to call for and examine the record of any criminal proceedings of a subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
It is therefore imperative that the applicant, who has moved this court by this application, satisfies this court of the incorrectness, illegality or impropriety in the finding or order of the lower court. Section 313 of the Penal Code prescribes for a term of upto 3 years. on count I, the trial magistrate meted out a sentence of 2 years imprisonment for counts II and III, a legal sentence of 1 year imprisonment was given out. In effect, the sentences as meted out were legal and proper.
In the sentence, the trial court gave the option of fines on each count. The trial magistrate, pursuant to the directions under section 37 of the Penal Code, properly ordered that the sentences do run consecutively.
And the trial magistrate, following the directions of section 31 of the Penal Code, ordered for compensation to take procedence over the fines.
The applicant has failed to convince this court of any error, illegality or impropriety on the part of the trial court or on the orders issued therein. I therefore do not find any merit in this application filed herein on 19. 7.2019. I dismiss the same entirely.
D. O. OGEMBO
JUDGE
23. 2.2021
Court:
Ruling read out in open court (online) in presence of Ms. Kimani for the state and the applicant (online) from Kamiti Prison.
D. O. OGEMBO
JUDGE
23. 2.2021