Omenda & another v Republic (Criminal Miscellaneous Application E029 of 2026) [2026] KEHC 13206 (KLR) (15 July 2026) (Ruling)

Omenda & another v Republic (Criminal Miscellaneous Application E029 of 2026) [2026] KEHC 13206 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEHC 13206 (KLR) Republic of Kenya In the High Court at Nyamira Criminal Miscellaneous Application E029 of 2026 TW Cherere, J July 15, 2026 Between Daniel Otieno Omenda 1st Applicant Domnic Gichana Adera 2nd Applicant and Republic Respondent Ruling 1.The Applicants moved this Court by the Notice of Motion dated 10th April 2026 seeking, principally, an order that the sentences imposed upon them in Nyamira CMCRC E419 and E420 of 2025 be ordered to run concurrently instead of consecutively. They further pray that the period spent in custody before sentence be taken into account pursuant to section 333(2) of the Criminal Procedure Code. 2.The application is founded on the grounds that the offences giving rise to the two criminal cases were committed on the same date, the Applicants were jointly tried and sentenced on the same day, and that the consecutive sentences imposed by the trial court are harsh and excessive. They further contend that the trial court failed to credit them with the period spent in custody before sentence. 3.I have carefully considered the application, the supporting affidavit, the proceedings placed before the Court and the applicable law. The issue falling for determination is whether this Court should interfere with the trial court's exercise of discretion in directing that the sentences run consecutively. 4.The law governing concurrent and consecutive sentences is well settled. Paragraphs 7.13 and 7.14 of the Judiciary Sentencing Policy Guidelines, 2016 provide as follows:“Where the offences emanate 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."“The discretion to impose concurrent or consecutive sentences lies in the court." 5.The foregoing principles were affirmed by the Court of Appeal in Peter Mbugua Kabui v Republic [2016] KECA 713 (KLR) , where the Court stated:“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. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment." 6.Applying the foregoing principles to the present application, I am not persuaded that this is an appropriate case for this Court to interfere with the manner in which the trial court directed the sentences to be served. Although the offences were committed on the same night and the Applicants were jointly charged, tried and sentenced on the same day, they did not arise from a single transaction. The Applicants were charged in two separate criminal cases involving two different complainants, two separate dwelling houses and different items of stolen property. Each act of burglary was complete upon the unlawful breaking and entry into the respective complainant's house with intent to steal, and each theft constituted a distinct offence against a different victim. The subsequent entry into another dwelling house amounted to a fresh and separate criminal enterprise. 7.In those circumstances, the offences cannot be said to have emanated from a single transaction merely because they were committed on the same night. Rather, they were committed in the course of multiple criminal transactions involving multiple victims. This is precisely the category of cases contemplated under paragraph 7.13 of the Judiciary Sentencing Policy Guidelines, 2016, where consecutive sentences are appropriate. 8.The Applicants have also prayed that the period spent in custody before sentence be taken into account. Section 333(2) of the Criminal Procedure Code imposes a mandatory obligation upon every sentencing court to take into account the period an accused person has spent in lawful custody before conviction and sentence. The record shows that the Applicants were arrested on 01st July 2025 in both criminal cases and remained in custody until 22nd July 2025, when they were convicted and sentenced. They are therefore entitled to the benefit of that statutory provision. 9.Consequently, while I find no basis for disturbing the order directing that the sentences run consecutively, I am satisfied that the Applicants are entitled to credit for the period spent in custody prior to sentence in accordance with section 333(2) of the Criminal Procedure Code. 10.In the result, the Notice of Motion dated 10th April 2026 partially succeeds only to the extent of compliance with section 333(2) of the Criminal Procedure Code. 11.Accordingly, I make the following orders:1.The prayer seeking an order that the sentences imposed in Nyamira CMCRC Nos. E419 and E420 of 2025 run concurrently is hereby dismissed.2.The order of the trial court directing that the sentences run consecutively is hereby upheld.3.Pursuant to section 333(2) of the Criminal Procedure Code, the sentences imposed in Nyamira CMCRC E419 and E420 of 2025 shall be computed from 01st July 2025, being the date on which the Applicants were first remanded in custody in respect of the offences for which they were convicted.4.The Officer in Charge of the prison where the Applicants are currently held shall forthwith recompute the sentences in accordance with this order.5.Save for the order made under section 333(2) of the Criminal Procedure Code, the Notice of Motion dated 10th April 2026 is dismissed. DELIVERED AT NYAMIRA THIS 15TH DAY OF JULY 2026WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - AnitaApplicants - PresentFor the DPP - Mr. Chirchir (SADPP)