[2024] KEHC 13159 (KLR)
The High Court found that the trial court erred by convicting and sentencing the appellant on the second count of handling stolen property, which should have been treated as an alternative to the main count of housebreaking and stealing. Upon conviction on the main count, no finding should have been made on the...
Source-derived case information.
- Citation
- [2024] KEHC 13159 (KLR)
- Parties
- Appellant: Dennis Onyango Okuto alias Denoh; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E028 of 2024
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed; conviction and sentence on count two quashed; sentence on count one upheld.
- Judges
- KW Kiarie
- Legal Topics
- Housebreaking, Handling Stolen Property, Sentencing Principles, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Onyango Okuto alias Denoh
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in ordering the sentences for housebreaking and handling stolen property to run consecutively instead of concurrently.
- 2 Whether the conviction and sentence on the second count (handling stolen property) was proper given it should have been an alternative charge.
- 3 Whether the sentence imposed was manifestly excessive in light of the appellant's previous convictions and the circumstances of the case.
Ratio Decidendi
The High Court found that the trial court erred by convicting and sentencing the appellant on the second count of handling stolen property, which should have been treated as an alternative to the main count of housebreaking and stealing. Upon conviction on the main count, no finding should have been made on the alternative charge. This error was prejudicial to the appellant. However, the sentence imposed for housebreaking and stealing was not manifestly excessive given the appellant's previous convictions for similar offences and the statutory maximum penalty. The court quashed the conviction and sentence on the second count but upheld the sentence on the first count, finding no basis to...
Court Disposition
Appeal partially allowed; conviction and sentence on count two quashed; sentence on count one upheld.
Orders
- The conviction and sentence on count two (handling stolen property) are quashed and set aside.
- The sentence on count one (housebreaking and stealing) is upheld.
Full Case Text
Judgment text and source record
29 paragraphs
Okuto alias Denoh v Republic (Criminal Appeal E028 of 2024) [2024] KEHC 13159 (KLR) (30 October 2024) (Judgment)
Neutral citation: [2024] KEHC 13159 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Criminal Appeal E028 of 2024
KW Kiarie, J
October 30, 2024
Between
Dennis Onyango Okuto alias Denoh
Appellant
and
Republic
Respondent
(From the original conviction and sentence in Criminal case NO. E100 of 2024 of the Principal Magistrate’s Court at Ndhiwa by Hon. B. W. Murangasia–Resident Magistrate)
Judgment
1. Dennis Onyango Okuto, alias Denoh, the appellant herein, was convicted after pleading guilty to housebreaking and stealing contrary to sections 304 (1) and 279 (b) of the Penal Code.
2. The appellant, along with others not before the court, committed the offence at 1800 hours on the 15th day of March 2024 at Ratanga Primary School, Central Kwabwai location, Ndhiwa sub-county within Homa Bay County, with others not before the court, jointly broke into the dwelling house of Bonface Ochieng Otieno and stole a solar panel, 2kgs of maize flour in a bucket, two basins of charcoal, three chair cushions and four a sandal all valued at Kshs. 3,500/=, the property of the said Bonface Ochieng Otieno.
3. The appellant was also charged with a second count of handling stolen property. It was found that on the 27th day of March 2024, otherwise, in the course of stealing, he retained one solar panel, a plastic pail, three chair cushions and a sandal, knowing or having reasons to believe it was stolen property.
4. In count one, the appellant was sentenced to five years imprisonment, and in count two, to three years imprisonment. The sentences were ordered to run consecutively. He was aggrieved and filed this appeal against the sentence. His prayer was that the sentences run concurrently.
5. The appeal was conceded to by the state. He argued that he ought to have benefitted from a noncustodial sentence.
6. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence before the lower court afresh and drawn my conclusions, bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
7. Section 348 of the Criminal Procedure Code provides as follows:No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
8. The prosecution erroneously duplicated the two counts. What was indicated as the second count ought to be an alternative to count one. Upon conviction in count one, the court should have made no findings on the alternative charge. This was prejudicial to the appellant.
9. I, therefore, quash the conviction in count two and set aside the sentence imposed therein.
10. An appellate court would interfere only where there exists, to a sufficient extent, circumstances entitling it to do so. Nelson vs Republic [1970] E.A. 599 as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.
11. The appellant had several other convictions for similar offences. Section 304 (2) of the Penal Code provides as follows:If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
12. Given the previous record, the sentence meted out cannot be said to be excessive. I will not, therefore, interfere with the sentence.
13. The appeal has succeeded, as observed hereinabove.
DELIVERED AND SIGNED AT HOMA BAY THIS 30TH DAY OF OCTOBER 2024KIARIE WAWERU KIARIEJUDGE