[2020] KEHC 868 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISCELLANEOUS CRIMINAL APPLICATION NO. E028 OF 2020

MOHAMMED REZA NAZARI SARABI.... APPLICANT

- VS -

REPUBLIC....................................................RESPONDENT

R U L I N G

1. The Appellant Mohammed Reza Nazari Sarabi an Iranian nationality pleaded guilty for the offences of being unlawfully present in Kenya contrary to Section 53(1)(j) as read with Section 53(2) of the Kenya Citizenship and Immigration Act and knowingly using a forged passport contrary to Section 54(1) as read with Section 54(2) of the Kenya citizenship and Immigration Act 2011.

2. The Applicant was convicted on his own plea of guilty fined Kshs.400,000/= in Count I indefault to serve one year imprisonment and Kshs.200,000 in Count II in default to serve one year imprisonment.

3. The trial Magistrate did not made indicate whether the sentences are to run concurrently on consecutively and the applicant’s prayer is that the sentences on the 2 counts run concurrently. Ms. Karanga the prosecuting counsel had no objection if the sentences on the 2 counts run concurrently.

4. Section 14 of the Criminal Procedure code provides as follows:-

“Sentences in cases of conviction of several offences at one trial

(1) Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.

(3)Except in cases to which section 7(1) applies, nothing in this section shall authorizea subordinate court to pass, on any person at one trial, consecutive sentences—

(a) of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinaryjurisdiction, is competent to impose, whichever is the less; or

(b) of fines which amount in the aggregate to more than twice the amount which theCourt is so competent to impose.

(4) For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence”.

5. It is lawful to pass consecutive sentences in the circumstances prescribed by Section 14. In Peter Mbugua Kabui vs Republic [2016] eKLR, the Court of Appeal stated as follows:-

“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”.

6. However, if separate and distinct offences are committed in a different criminal transactions even though the counts may be on one charge sheet and are trial it is not illegal to make out a consecutive than of imprisonment. Sentencing Policy Guidelines provide as follows:-

“7. 13 – Where the offence emanates from a single transaction the sentences should run concurrently. However, where the offences are committed in the course of multiple transactions and where there are multiple victims the sentences should run consecutively”.

7. The discretion to impose concurrent or consecutive sentences lies on the court.

High Court of Kenya at Kericho Revision No. 12 of 2017.

Justice Mgugi – held that the offences charged in the 2 counts were committed in the same transaction and substituted the consecutive sentences with concurrent sentences.

8. However, in the case of imprisonment in default of payment of a fine, the sentence cannot run concurrently with a sentence in another count. The trial Magistrate could not and this court cannot order for default sentences in the 2 counts to run concurrently.

9. I have however taken notice of the applicants frail health and the fact that the sentence of one year in Count II in default of payment of a fine of Kshs.2,000,000/= should be sufficient punishment of the offences charged and do hereby revise the sentence in Count I to a discharge under Section 35(1) of the penal code.

11. Order accordingly.

Dated, signedand deliveredat Mombasathis10thday ofDecember, 2020.

HON. LADY JUSTICE A. ONG’INJO

JUDGE