[2015] KEHC 5382 (KLR)
The court found that the offences of house-breaking and stealing were committed in the same transaction and at the same time. Therefore, the sentences imposed for each offence should run concurrently, not consecutively, in accordance with established sentencing principles. The trial court erred by failing to provide...
Source-derived case information.
- Citation
- [2015] KEHC 5382 (KLR)
- Parties
- Appellant: Patrick Kimeu Mwanzia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 398 of 2013
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- Appeal against sentence allowed in part; sentences to run concurrently.
- Legal Topics
- Sentencing Principles, Concurrent Vs Consecutive Sentences, House Breaking, Theft From Dwelling
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kimeu Mwanzia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the trial court erred in ordering the sentences for house-breaking and stealing to run consecutively instead of concurrently.
- 2 Whether the individual sentences imposed were excessive or unjustified.
Ratio Decidendi
The court found that the offences of house-breaking and stealing were committed in the same transaction and at the same time. Therefore, the sentences imposed for each offence should run concurrently, not consecutively, in accordance with established sentencing principles. The trial court erred by failing to provide reasons for ordering consecutive sentences, resulting in an unduly harsh cumulative sentence. However, the individual sentences of 3 and 5 years were justified given the value and number of items stolen. The appeal was allowed only to the extent that the sentences would run concurrently from the date of sentencing.
Court Disposition
Appeal against sentence allowed in part; sentences to run concurrently.
Orders
- The sentences of 3 and 5 years imprisonment imposed on the appellant shall run concurrently from the date of sentencing.
- The order for consecutive sentences by the trial court is set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO 398 OF 2013
(Appeal against sentence only in Thika CM Criminal Case No 4461 of 2012 _D A Orimba, PM)
PATRICK KIMEU MWANZIA………………………………..….APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
J U D G M E N T
1. The Appellant, Patrick Kimeu Mwanzia, and his co-accused were on 22/10/2012 convicted in the court below upon their own plea of house-breaking and stealingcontrary to sections 304 (1) (b) and 279 (b)of the Penal Code. They were each sentenced to serve 3 years imprisonment in the first limb of the charge and 5 years imprisonment in the second limb, the sentences to run consecutively.
2. The Appellant has appealed against sentence only. The registry has checked the criminal appeals registers for 2012, 2013, 2014 and 2015. No appeal by the Appellant’s co-accused, Joseph Makau Mutua, was found.
3. In sentencing the Appellant and his co-accused the trial court stated –
“Accused (persons) pleaded guilty.They are first offenders.I have considered the mitigations……”
The Appellant’s plea in mitigation was-
“I pray for mercy. I will return the other items which are at home.”
4. The stolen items as per the charge sheet were one Samsung Mini Galaxy mobile phone, one Ideos mobile phone, one digital Olympius recorder, and one pair of slippers (all valued at KShs 43,100/00) and cash Kshs.1,500/00.
5. Learned Senior Principal Prosecution Counsel, Mr. Njeru, does not support the order for the sentences to run consecutively, but he otherwise supports the sentences which in his view were merited. He pointed out that the maximum sentence for house-breaking is 7 years imprisonment while that for theft from a dwelling house is 14 years imprisonment.
6. Ordinarily where two or more offences are committed in the same transaction and at the same time, any sentences of imprisonment imposed would be ordered to run concurrently. In the present case, the trial court’s order had the effect of condemning the Appellant to a cumulative sentence of eight (8) years imprisonment. No reasons were given why the sentences should run consecutively and not concurrently as they ordinarily should.
7. As for the individual sentences themselves, they were richly deserved; a large number of items worth a substantial amount of money were stolen from the dwelling house broken into.
8. In the result, I will allow the appeal against sentence but to the limited extent only that the sentences of 3 and 5 years imposed shall run concurrently from the date of sentencing and not consecutively as ordered by the trial court. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 29TH DAY OF APRIL 2015
H.P.G.WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 30TH DAY OF APRIL 2015