[2022] KEHC 13911 (KLR)

Ouma v Republic (Criminal Revision E376 of 2021) [2022] KEHC 13911 (KLR) (Crim) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13911 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E376 of 2021

LN Mutende, J

October 12, 2022

Between

Ismael Ben Otieno Ouma

Applicant

and

Republic

Respondent

Ruling

1. Through an application dated October 10, 2021, Ismael Ben Otieno Ouma seeks interpretation of orders given by the trial court on July 6, 2021 in Criminal Cases No 597 of 2021 and 630 of 2021 so that sentences in both matters can commence from May 31, 2021 in order to run simultaneously.

2. In Criminal case No E597 of 2021 the applicant was charged with stealing contrary to section 268(1) as read with section 275 of the Penal code; having stolen two (2) flash knobs the property of Fredrick Mwanzia of Clarion Hotel, valued at Ksh 10,000/- on the May 21, 2021. He admitted the charge at the outset, was convicted and sentenced to serve two (2) years imprisonment.

3. In Criminal Case No E630 of 2021, the applicant faced a charge of stealing contrary to section 268 (1) as read with section 275 of the Penal Code. The allegation being that he stole twenty (20) flashing knobs valued at Kshs 100,000/- the property of Re-insurance Corporation on July 12, 2019. The charge had an alternative count of handling stolen goods contrary to section 322 (1) (2) of the Penal Code. Particulars being that he dishonestly received or retained three toilet flashing knobs knowing or having reasons to believe them to be stolen goods.

4. At the outset he denied having committed the offence, but, ultimately changed plea and admitted the charge. He was convicted and sentenced to serve three (3) years imprisonment on July 6, 2021. The trial court was of the view that the applicant deserved a deterrent sentence having offended more than once.

5. In the instant application, the applicant seeks an order directing the sentences to run concurrently with effect from the May 31, 2021.

6. This court has been approached pursuant to provisions of article 49 (1) of the Constitution a provision of the law that provides for the rights of an arrested person. This is not applicable since the applicant herein is an offender having been convicted.

7. Nevertheless, such an offender could only have approached the court through revision, therefore this court has to interrogate if the orders of the trial court are amenable to revision. Section 362 of the Criminal Procedure Code provides thus:The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

8. This court’s jurisdiction is therefore limited to correcting errors, illegalities or impropriety in proceedings. As afore noted, proceedings in the subordinate court emanated from two (2) different courts. The offences were committed at different times. The offences were not related. Where offences in issue are closely related and/or are committed in the same transaction, they ought to run concurrently. But, where the offences are distinct and are committed on diverse dates, and the complainants are different, resulting sentences cannot run concurrently. The Judiciary Sentencing Policy provides thus:“7. 13Where 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 sentence should run consecutively.7. 14He discretion to impose concurrent or consecutive sentences lies in the court.”

9. From the foregoing, I find the application lacking merit. Accordingly, it is dismissed.

10. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 12TH DAY OF OCTOBER, 2022. LN MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Ntabo - ODPP.Mutai- Court Assistant