[2021] KEHC 3300 (KLR)
The court found that the trial court erred in imposing a harsher sentence on the appellant than on his co-accused for the alternative charge to count I, as there was no valid justification for the disparity. The trial court's reasoning that the appellant possessed ammunition for destruction purposes was flawed, as...
Source-derived case information.
- Citation
- [2021] KEHC 3300 (KLR)
- Parties
- Appellant: Mpaapa Naiputari; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 39 of 2020
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal partially allowed; sentence for handling stolen property reduced to three years; order for consecutive sentences upheld; remainder of appeal dismissed.
- Judges
- DW Mbuteti
- Legal Topics
- Sentencing Principles, Consecutive Sentences, Handling Stolen Property, Unlawful Possession of Ammunition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mpaapa Naiputari
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the disparity in sentences between the appellant and his co-accused for handling stolen property was justified.
- 2 Whether the order for the appellant's sentences to run consecutively was lawful and appropriate.
Ratio Decidendi
The court found that the trial court erred in imposing a harsher sentence on the appellant than on his co-accused for the alternative charge to count I, as there was no valid justification for the disparity. The trial court's reasoning that the appellant possessed ammunition for destruction purposes was flawed, as he was separately convicted and sentenced for unlawful possession of ammunition. This amounted to double jeopardy in sentencing. The High Court therefore reduced the sentence for handling stolen property to three years to match that of the co-accused. However, the court upheld the order for the sentences to run consecutively, finding that the offences were distinct, committed in...
Court Disposition
Appeal partially allowed; sentence for handling stolen property reduced to three years; order for consecutive sentences upheld; remainder of appeal dismissed.
Orders
- Sentence of four years imprisonment for handling stolen property set aside and substituted with three years imprisonment from date of original sentencing.
- Order for sentences to run consecutively upheld.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL APPEAL NO 39 OF 2020
MPAAPA NAIPUTARI.........................................................................................APPELLANT
VERSUS
REPUBLIC.........................................................................................................RESPONDENT
Appeal from original Sentence in Nanyuki CM Criminal Case No 175 of 2018 – L Mutai, CM)
J U D G M E N T
1. The Appellant herein, MPAAPA NAIPUTARI, and his co-accused, were acquitted after trial of the main charge of robbery with violence contrary to section 296(2) of the Penal Code but were convicted of the alternative charge of handling stolen property contrary to section 322(2) of the Penal Code. For this offence the Appellant was sentenced to four (4) years imprisonment. His co-accused was sentenced to three (3) years imprisonment.
2. The Appellant was also convicted in count II of unlawful possession of ammunition (6 rounds of 7. 62 x 51 mm bullets)without a firearms certificate. For this offence he was sentenced also to four (4) years imprisonment. The Appellant’s sentences were directed to run consecutively.
3. The Appellant has appealed only against the sentence. His co-accused apparently did not appeal. The Appellant has two complaints against the sentences meted out to him –
a) The disparity between his sentence (4 years imprisonment) and his co-accused’s sentence (3 years imprisonment) in the alternative charge to count I.
b) The order that his two sentences each of 4 years imprisonment do run consecutively.
4. With regard to the first complaint, ordinarily accused persons tried and convicted together ought to be treated the same as far as sentence is concerned, unless there is any special reason to treat them differently. In this case the Appellant was treated differently because he “had in his possession 6 rounds of ammunition for destruction purposes.” The trial court appears to have overlooked the fact that the Appellant had been convicted of illegal possession of those 6 rounds of ammunition and was just about to be sentenced for that second offence, thus exposing him to double-jeopardy in the sentence. There was no good reason at all to treat him differently from his co-accused as far as the alternative charge to count I was concerned.
5. I will in the event set aside that sentence of 4 years imprisonment for the alternative charge to count I and substitute therefor imprisonment for three (3) years from the date of sentencing by the trial court. It is so ordered.
6. Regarding the order that the Appellant’s two sentences of imprisonment do run consecutively, it is to be noted that ordinarily, where the offences concerned were distinct and committed in different transactions, and/or in different times or places, and/or involving different victims, an order for sentences to run consecutively can legitimately be made at the discretion of the trial court. See section 14(1) of the Criminal Procedure Code. This is notwithstanding that the offences have been tried in the same proceeding. This is however subject to the limitation imposed by subsection (3) of section 14 aforesaid, to the effect that the aggregate of the consecutive sentences should not amount to more than 14 years, or twice the amount of imprisonment that the court, in exercise of its ordinary jurisdiction, is competent to impose.
7. However, the said limitation does not apply where the subordinate court concerned is of the first class held by a chief magistrate, senior principal magistrate, principal magistrate or senior resident magistrate. See section 7(1) of the Criminal Procedure Code. In the present case the court concerned was held by a chief magistrate. The order for the sentences to run consecutively was thus lawful.
8. It will be noted also, that though the two offences the Appellant was convicted of were committed on 30/01/2018 at Ewaso Village within Laikipia County, they were distinct and not connected at all. In the first offence the Appellant dishonestly received and retained a VHF radio charger and cable, a pair of sun-glasses, and a pen knife and its holder, knowing or having reason to believe them to be stolen property. In the second offence he was found in unlawful possession of six rounds of ammunition. These two offences were not committed in the same criminal transaction as there was no evidence that he received the bullets together with the stolen properties.
9. Finally, the sentences imposed upon the Appellant cannot be said to be manifestly harsh or excessive; it has not been so demonstrated.
10. In the result I find no merit in the complaint regarding the order that the Appellant’s sentences do run consecutively. Except to the limited extent already ordered in respect to the sentence for the alternatively charge to count I, the Appellant’s appeal against sentence is hereby dismissed. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 6TH DAY OF OCTOBER 2021
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 7TH DAY OF OCTOBER 2021