https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9341

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COUNTY COURT NAME: KIAMBU HIGH COURT CASE NUMBER: HCCRREV/E010/2026 SAMUEL MBITU KARIUKI VS ODPP RULING ## *(Application for Revision of Sentence Arising from the Sentence Passed in* Kiambu CM’s Court Criminal Case No. E558 of 2025 by Hon. J.D Karani SRM) The applicant Samuel Mbitu Kariuki was charged with two counts before the Magistrate’s Court at Kiambu CM’s Court. They were being in possession of narcotic drugs contrary to Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act and resisting lawful arrest contrary to Section 254(6) of the Penal Code. The applicant pleaded guilty when he was arraigned before the trial magistrate. The facts were read out to him and he admitted the same. He was accordingly convicted on his own plea of guilty. The trial magistrate sentenced him to serve one year on each count and ordered that the sentence does run consecutively. The applicant took out a Notice of Motion dated 23rd February, 2026 pursuant to the provisions of Article 165(6) and (7) of the Constitution of Kenya, Section 14 and 333(2) of the Criminal Procedure Code seeking the following prayers: 1. *That this honourable court be pleased to revise the pronouncement of the learned trial magistrate in Criminal Case No. E558 of 2025 at Kiambu, where the applicant was sentenced to serve consecutive custodial sentence of one year each.* 2. *That the honourable court be pleased to order that the sentence run concurrently in line with the principle of ‘same transaction’.* 3. *That the honourable court be pleased to take into account the period of two months and twelve days already spent in the custody by the applicant at the pendency of the trial.* 4. *That the honourable court grants any other orders it deems fit in the interest of justice.* The application is supported by the grounds on the face of it and the supporting affidavit of the applicant. The applicant contention is that the offences he was charged with occurred at the same time and place forming part of a single continuous transaction and as such the sentence ought to run concurrently by dint of Section 14 of the Criminal Procedure Code. Further the applicant contend that the trial magistrate failed to take into account the period spent in custody before he was sentenced contrary to Section 333(2) of the Criminal Procedure Code. He urges this court to exercise its unlimited jurisdiction under Article 165 of the Constitution and review the sentence. The application is unopposed. I have considered the application herein. This Court is empowered by Article 165(6) of the Constitution of Kenya to review the decision by a subordinate court. Article 165(6) of the Constitution of Kenya provides: ## *“The High Court has supervisory jurisdiction over the subordinate courts and* over any person, body or authority exercising judicial or quasi-judicial function, but not over a superior court.” In the instant case the applicant is calling upon this court to exercise its jurisdiction under Article 165(6) of the Constitution and review the sentence. His contention is that the trial magistrate ought not to have imposed a consecutive sentence and that he ought to have considered the period spent in custody. Regarding the consecutive and concurrent sentence, the legal framework is found in Section 14 of the Criminal Procedure Code which provides: ## *“14(1) Subject to subsection (3), where a person is convicted at one trial of two* or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed thereof which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishment shall run concurrently.” Further in the case of ***Peter Mbugua Kabui vs R (2016) e KLR*** the Court of Appeal held: ## *“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.” Again, the Sentencing Policy Guidelines provides: ## *“7. 13- where the offence emanates from a single transaction the sentence* should run concurrently. However, where the offence is committed in the course of multiple transaction and where there are multiple victims the sentence should run consecutively.” The foregoing sets out the sentencing principles. It is clear that as much as possible where the offences are committed in a single transaction, it is desirable that the sentence should run concurrently unless there are aggravating circumstances. In this case there was nothing aggravating for the trial court to impose consecutive sentence when the offences in two counts were committed in a single transaction. I am therefore minded to review the same and order that the sentence of one year imposed on each count to run concurrently. Further and pursuant to Section 333(2) the trial court ought to have taken into account the period the applicant spent in custody. The applicant spent two months and twelve days in custody before he was sentenced. The same is hereby taken into account and the sentence of one year shall be less two months and twelve days the applicant spent in custody. Orders accordingly # Dated, signed and delivered at Kiambu Virtually this 1st day of July, 2026 Francis Kyambia **Judge** 2 SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE FRANCIS NYUNGU KYAMBIA** Kiambu High Court High Court Div Date: 2026-07-01 12:20:51