[2023] KEHC 19793 (KLR)
The court found that all the offences for which the applicant was convicted were committed in a single transaction. Applying the principle from Peter Mbugua Kabui vs Republic, the court held that sentences for offences arising from a single transaction should run concurrently. The trial court's imposition of...
Source-derived case information.
- Citation
- [2023] KEHC 19793 (KLR)
- Parties
- Applicant: Dieudonne Tutizere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E165 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- Application for revision allowed. Consecutive sentences set aside and substituted with concurrent sentences. Deportation and bar from re-entry ordered.
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Concurrent Vs Consecutive Sentences, Immigration Offences, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dieudonne Tutizere
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the sentences imposed on the applicant should run concurrently or consecutively.
- 2 Whether the trial court exercised its discretion properly in sentencing the applicant.
- 3 Whether the sentence imposed was lawful and appropriate in the circumstances.
Ratio Decidendi
The court found that all the offences for which the applicant was convicted were committed in a single transaction. Applying the principle from Peter Mbugua Kabui vs Republic, the court held that sentences for offences arising from a single transaction should run concurrently. The trial court's imposition of consecutive sentences was therefore set aside and substituted with an order for concurrent sentences. The court further directed that the applicant be deported upon completion of the sentence and barred from returning to Kenya for three years from the date of deportation.
Court Disposition
Application for revision allowed. Consecutive sentences set aside and substituted with concurrent sentences. Deportation and bar from re-entry ordered.
Orders
- The consecutive sentence imposed by the trial court is set aside and substituted with an order that the sentences shall run concurrently effective December 16, 2022.
- The Director Immigration Services is directed to deport the applicant to his country upon completion of the sentence, and a repatriation order be filed in the lower court file.
Full Case Text
Judgment text and source record
27 paragraphs
Tutizere v Republic (Criminal Revision E165 of 2023) [2023] KEHC 19793 (KLR) (Crim) (6 July 2023) (Ruling)
Neutral citation: [2023] KEHC 19793 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E165 of 2023
DR Kavedza, J
July 6, 2023
Between
Dieudonne Tutizere
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged, pleaded guilty and was convicted on five counts of the offences under Section 54 (1)(a) as read with Section 54(2) of the Kenya Citizenship and Immigration Act, 2011, laws of Kenya. He was sentenced to pay Kshs 650, 000 on the 5 counts and in default to serve 27 months in prison. He made an application for sentence review seeking a reduction of the fine imposed.
2. Having considered the application for revision, the applicable law, the issue for determination is whether the applicant should be granted revisionary orders sought.
3. The provisions of section 362 to 364 of the Criminal Procedure Code (Cap 75) Laws of Kenya, grants this court powers to exercise reversionary jurisdiction. The applicant was convicted on five (5) counts for offences related to making a false declaration, misleading an immigration officer, being unlawfully present in Kenya and failure to register his foreign national documents. He was sentenced to pay a fine in each of the counts in default to serve various sentences ranging from three to six months imprisonment.
4. The Applicant failed to raise the fine imposed and is therefore serving the custodial sentences since the order of the court was that in default of payment of fine, the sentences shall run consecutively. Cumulatively, the custodial sentences add up to twenty-seven (27) months imprisonment. The applicant now prays to this court to review the order of the court to have the sentence imposed to run concurrently.
5. At the outset, I would like to state that the applicant is challenging judicial discretion of the trial magistrate. However, this court can only interfere with such exercise of discretion if it is established, either that the sentence was too harsh or too lenient in the circumstances, or the trial magistrate applied the wrong principles of law, or finally, that the sentence was illegal. I have carefully gone through the proceedings and find that the sentence imposed was lawful.
6. I have considered the application of the applicant, the oral submissions of both Mr Mutuma for the state and the applicant.
7. The record is clear that the offences the applicant was charged with were all committed in a single transaction. The State counsel has indeed conceded to this fact. In the case of Peter Mbugua Kabui vs Republic[2016] eKLR where the Court of Appeal stated as follows:“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”
8. The above holding by the Court of Appeal is applicable to this case. I would accordingly set aside the consecutive sentence imposed by the trial court and substitute thereof with an order that the sentences shall run concurrently effective December 16, 2022.
9. Additionally, the Director Immigration Services is directed to deport the applicant to his country upon completion of the sentence, and, a repatriation order be filed in the lower court file.
10. The applicant is further barred from returning to this country for a period of three (3) years with effect from the date of deportation.
11. It is so ordered.
RULING DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF JULY 2023. .............................D. KAVEDZAJUDGEIn the presence of:Mr. Mutuma for the StateApplicant present on the Platform.Habiba C/A