[2014] KEHC 6040 (KLR)
The court found that the original sentencing order was ambiguous as to whether the terms of imprisonment for the different counts and limbs were to run consecutively or concurrently. To avoid confusion and ensure fairness, the court exercised its discretion to vary the order so that all sentences would run...
Source-derived case information.
- Citation
- [2014] KEHC 6040 (KLR)
- Parties
- Appellant: Omar Suleiman Kibwebwe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 139 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; sentences to run concurrently
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Principles, Burglary, Stealing, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Suleiman Kibwebwe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences imposed on the appellant should run consecutively or concurrently.
- 2 Whether the appellant is entitled to a reduction or clarification of the sentence imposed.
Ratio Decidendi
The court found that the original sentencing order was ambiguous as to whether the terms of imprisonment for the different counts and limbs were to run consecutively or concurrently. To avoid confusion and ensure fairness, the court exercised its discretion to vary the order so that all sentences would run concurrently. This clarification meant that the appellant would serve a total of three years' imprisonment, not eight, as he had feared. The court further ordered that if the appellant had already served the three-year term, he should be released unless otherwise lawfully held.
Court Disposition
sentence varied; sentences to run concurrently
Orders
- The order for the sentences to run consecutively is varied to that of concurrent sentence.
- The sentences on both counts 1 and 2 will run concurrently.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 139 OF 2011
OMAR SULEIMAN KIBWEBWE ...............APPELLANT
VERSUS
REPUBLIC ……….……..........................RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 1741 of 2010 of the Senior Principal Magistrate's Court at Kwale – Hon. Aminga - RM)
JUDGMENT
The Appellant was Convicted and Sentenced to three (3) years imprisonment in respect of the 1st Count of burglary and stealing contrary to Section 304 (2) and 279 (b) of the Penal Code and on the 2nd Count to three (3) years imprisonment.
The Sentence was ordered to run consecutively.
A detailed breakdown shows that on the first limb of the first Count he was Sentenced to three (3) years imprisonment and the Second limb one (1) year.
On the 2nd Count on the first limb he was Sentenced to three (3) years imprisonment. On the 2nd limb he was Sentenced to one year imprisonment.
Though initially the appeal was both on Conviction and Sentence the appellant appears to have abandoned the grounds on Conviction and mainly factored issues on mitigating the Sentence. The appellant appears to labour under the impression that he was Sentenced to eight (8) years imprisonment. There is indeed confusion as it is not indicated whether the imprisonment term of three (3) years on 1st limb and one year (1) imprisonment on the 2nd limb would run consecutively or concurrently for avoidance of doubt and set the record correct the order for the Sentences to run consecutively is hereby varied to that of concurrent Sentence.
The Sentences on both Counts 1 and 2 will therefore run concurrently. The upshot is that the Appellant will serve a term of three (3) years imprisonment only.
In the event he has served that term to be set at liberty unless otherwise lawfully held.
Judgment delivered dated and signed this 31st day of March, 2014.
…...............
M. MUYA
JUDGE
31ST MARCH, 2014
In the presence of:-
Learned State Counsel Miss Mwaura
Appellant present
Court clerk Musundi