[2023] KEHC 24968 (KLR)

Wambui & 2 others v Republic (Criminal Appeal E024, E025 & E026 of 2021 (Consolidated)) [2023] KEHC 24968 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24968 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal E024, E025 & E026 of 2021 (Consolidated)

HI Ong'udi, J

November 3, 2023

Between

Samuel Mwangi Wambui

1st Appellant

Michael Lenkilili alias Leshan

2nd Appellant

Stephen Kihungi Kariuki

3rd Appellant

and

Republic

Respondent

(Appeal arising from the conviction and sentence in the Engineer Senior Principal Magistrate’s Court, Criminal Case No 224 of 2019 against the judgment of Hon Daffline Nyaboke Sure dated 18th March, 2021)

Judgment

1. The Appellants were charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal code on four (4) counts.

2. The particulars of Count 1 were that the 1st, 2nd, and 3rd Appellants on 24th December 2018 at Karate area of Naivasha in Naivasha Sub County, jointly with others not before the court while armed with dangerous weapons namely a pistol, panga, and iron bars, robbed off Daniel Gitahi Wanjuki a motor vehicle make Toyota pro box registration number KCC xxxR and Ksh 2,400/= all valued at Ksh 602, 400/= and at the time of such robbery used actual violence to the said Daniel Gitahi Wanjuki.

3. The particulars of Count 2 were that the 1st, 2nd and 3rd Appellants on 27th December, 2018 at Gilgil Township in Gilgil Sub County within Nakuru County, jointly with others not before the court, while armed with dangerous weapons namely a pistol, panga and iron bars, robbed off Joseph Kariuki Njihia a motor vehicle make pro box registration number KCQ xxxM valued at Kshs 960,000/= and Ksh 5,600/= all valued at Ksh 965,600/= and at the time of such robbery used actual violence to the said Joseph Kariuki Njihia.

4. The particulars of Count 3 were that the 2nd and 3rd appellants on 31st December, 2018 at Gema Estate Gilgil in Gilgil subcounty within Nakuru county, jointly with others not before the court, while armed with dangerous weapons namely pistol & iron bars, robbed off Samuel Kamau Njane (stolen items as per attached sheet) all valued at Ksh 1,847,500/= and at the same time of such robbery used actual violence to the said Samuel Kamau Njane.

5. The particulars of Count 4 were that the 1st and 3rd Appellants on 31st December, 2018 at Gema Estate Gilgil in Gilgil Sub County within Nakuru County, jointly with others not before the court, while armed with dangerous weapons namely pistol and iron bars, robbed off John Ngatia Muriuki one mobile phone make infinix hot 6 valued at Ksh 15,000/= and at the time of such robbery used actual violence to the said John Ngatia Muriuki.

6. The Appellants pleaded not guilty to all the counts & the matter proceeded to full hearing with the prosecution calling a total of eleven (11) witnesses while the Appellants gave each an unsworn statement of defence without calling any witness. Thereafter the Appellants were found guilty and convicted on counts 1, 2 and 4 and acquitted on count 3 and sentenced as follows:Count 1: 1st and 3rd Appellants to each serve 30 years imprisonment.Count 2: 1st, 2nd and 3rd Appellants to each serve 30 years imprisonment.Count 4: 1st and 3rd Appellants to each serve 30 years imprisonment.The court ordered that the sentenced run concurrently.

7. The 1st Appellant filed this appeal and amended grounds of appeal on 10th November, 2022 which are that:a.The learned trial magistrate erred in law and fact by relying on the evidence of visual identification which was not credible given that circumstances were not conducive for positive identification since the perpetrators were all strangers.b.The learned trial magistrate erred in law and fact by finding that the identification parades conducted were procured but failed to consider that there were too many irregularities and procedural technicalities were flawed.c.The learned trial magistrate erred in law and fact by holding that, the offence of robbery with violence was proved while the ingredients of the offence were not proved as against the appellant.d.The learned trial magistrate erred in law and fact by awarding sentences of 30 years in each count of three and held that sentences to run consecutively instead of concurrently.e.That the learned trial magistrate erred in law and fact by not considering that appellants defence.

8. The 2nd Appellant filed this appeal and amended grounds of appeal on 1st August, 2023 which are that:a.The learned trial magistrate erred in law and facts when she relied on the evidence of purported visual identification to convict the appellant yet failed to note that circumstances were not conducive for positive identification owing to the fact that the perpetrator was a stranger.b.The learned trial magistrate erred in law and facts in finding that the identification parades conducted by pw9, were properly procured while there were glaring irregularities and procedural technicalities were flawed.c.The learned trial magistrate erred in law and fact by holding that, the offence of robbery with violence was proved against the appellant but failed to note that the elements of the offence were not proved as against the appellant.d.The learned trial magistrate erred in both matters of law and facts in misconstruing the circumstances of arrest of the appellant in connecting him with the robbery committed against Joseph Kariuki Njihia.e.The learned trial magistrate erred in both matters of law and facts in shifting the burden of proof to the appellant and failed to evaluate conclusively the appellants defence of alibi alongside the prosecution evidence, the defence was not given adequate consideration.

9. The 3rd Appellant in his submissions filed on 15th June 2023, he listed the grounds of appeal as:a.Visual identification was not conclusively proved.b.Identification parades were flawed.c.The Prosecution did not prove the offence of robbery with violence.d.Harsh Sentence.

10. The Appeal was canvassed by written submissions.

1st Appellant’s submissions 11. The 1st Appellant filed submissions on 15th June, 2023. He submitted that the trial court erred when it held that visual identification by PW1, PW2 and PW3 could in law be taken as enough evidence to convict the 1st Appellant. He submitted that all three witnesses stated that “the robbers were not known to them before the incident.” He also relies on the cases of Anjononi vs Republic 1980 eKLR, R vs Turnbull and others (1976) All ER 549, Roria vs Republic [1967] EA 586 and R vs Gayle, on the issue of identification.

12. It is the 1st Appellant’s submission that from PW3’s evidence he saw a tall man who drove his vehicle. It is clear that he never did proper observation. He further submits that in PW3’s first Occurrence Book report No 10/29/12/2018 given at 0459 hours at Gilgil Police Station, he never gave any description of the assailant. He contended that the identification parades conducted by PW9 and PW10 were flawed, as the witnesses gave no advance description of the Appellant prior to the conduct of the identification parades.

13. The 1st Appellant also submits that the following irregularities were committed: PW9 used the same members of the parade for himself and the 3rd Appellant and only changed positions yet they do not share the same features, the use of the same suspects who had been identified earlier by the same witness where the 2nd Appellant was identified a day before the 1st Appellants identification parade; he did not take a position he liked during the Identification parade; PW9 did not take her time to explain the procedures to the witness and he was not allowed to have his friend or solicitor during the identification parade. The 1st Appellant relied on the cases of Samuel Kilonzo Musau vs Republic, [2012] eKLR.

14. The 1st Appellant while relying on the case of Johana Ndung’u vs Republic [1996] eKLR submitted that the ingredients of the offence of robbery with violence according to Section 296 (2) of the Penal code were not met as the 1st Appellant did not commit the act of robbery, was not found in possession of any stolen property and was not found in possession of any dangerous or offensive weapon.

15. He further submitted that the trial court in sentencing held that the three counts run consecutively but failed to note that the counts emanated from related offences committed in the same transaction and thus ought to run concurrently. Reliance was placed on the case of Richard Lengure Ramacha and 2 others vs Republic [2013] eKLR.

2nd Appellant’s submissions 16. The 2nd Appellant filed submissions on 1st August, 2023. He submitted that his conviction and sentence were based on the identification by PW3, PW4, PW5 and partially by PW 6. He argues that all the prosecution witnesses were not at the scene of the crime. He cited the cases of Kamau vs Republic [1975] EA 139 and Roria vs Republic [1967] EA 583 where it was held that the court needs to examine evidence of identification of an accused with the greatest care to avoid a situation where an innocent person is convicted merely because of evidence of a witness. Additionally, that a close scrutiny of the evidence tendered by PW3 did not identify him as the assailant.

17. It is his submission that no description of him was given before his arrest, nor before his identification parade. He submitted that he was prejudiced as the identification parades were flawed. He places reliance on the cases of Ajode vs Republic [2004] 2 KLR 81, Samuel Kilonzo Musau vs Republic, (supra) among others.

18. The 2nd Appellant submitted that the elements of the offence of robbery with violence were not proved against him. Further that his conviction and sentence were based on suspicion which cannot form a basis of conviction. Reliance was placed on the case of Sawe v Republic [2008] KLR 364.

19. He argued that he raised a defence of alibi as he was in Laikipia county, when the offence was committed yet the trial court never considered it. He further argued that his evidence was never disapproved by the prosecution. He referred to the case of Uganda vs Sebyala & Others (1969) EA 204 and Section 309 of the Criminal Procedure Code.

3rd Appellant’s submissions 20. The 3rd Appellant filed his submissions on 15th June, 2023. He submitted that his conviction and sentence were premised on the identification evidence of PW1, PW2 and PW3. That the trial court did not fully analyze the circumstances in each identification to note that circumstances were difficult for positive identification. He relies on the case of Kamau vs Republic [1975] EA, in support.

21. He submitted further that he did not participate in the alleged robberies and PW 1, PW2 and PW3 failed to satisfy the threshold for a positive identification. It was therefore unsafe to convict him in the absence of any additional independent and corroborative evidence that linked him to the offence committed on 24th December, 2018 in respect of Daniel Gitahi Wanjiku.

22. He further submitted that all identification parades conducted by PW9 & PW10 were flawed and so could not be the basis for a conviction. In addition, he argued that the witnesses had not reported to the police that they could identify him. The witness only stated the suspect was a tall man. Moreover, no friend, or solicitor was present to take care of his interests during the parade. Further no evidence connected him to the mentioned pistol in as much as it was not found in his possession.

23. Finally, the 3rd Appellant submitted that the discretion to pass sentence consecutively or concurrently must be exercised based on principles of law.

Respondent’s submissions 24. The Respondent filed their submissions dated 29th November 2022 by Mr. Alex Ndiema who identified the following issues for determination:a.Whether the visual identification was free from errorb.Whether the prosecution proved its case beyond reasonable doubt

25. Counsel submitted that PW2 clearly recollected that the 1st Appellant was the driver of their car jacked motor vehicle. Further that the said witness was able to see the 1st Appellant through the torch lights and head lights at different intervals.

26. Counsel also submitted that the 2nd Appellant was identified by PW3 who on the material day of the offence posed as a customer and therefore interacted with the witness for quite a long period of time. That the said witness travelled with the 2nd Appellant from Mai Mahiu to Gilgil. The estimated time taken for such a journey is one and half hours. Counsel contended that this was sufficient time to enable PW3 recognize the 2nd Appellant.

27. Additionally, counsel submitted that the 3rd Appellant was identified by PW1 who testified that the said Appellant had posed as a customer who wanted taxi services from PW1, and the two interacted for a long time and hence the witnesses’ ability to identify the 3rd Appellant clearly. Counsel argues that PW2 also identified the 3rd Appellant through his physique. Identification parades were conducted and the identification Form was produced as an exhibit.

28. Counsel while relying on the case of Oluoch vs Republic [1985] KLR, submitted that the prosecution fulfilled its sole duty by proving beyond reasonable doubt all the ingredients of the offence of robbery with violence. He contended that the Appellants were armed with a dangerous weapon namely a firearm and robbed the complainants of their motor vehicles, precious valuables and used violence on them. This he argued was clearly stated by the complainants in their evidence. Additionally, that the robbery was conducted by more than one person, and in the process PW3 was injured. A P3 Form to that effect was produced.

29. Finally, counsel submitted that the trial court had a chance to hear the Appellants defence which was considered and the court found that it was the Appellants who robbed the complainant. He prayed for dismissal of the appeals.

30. A summary of the evidence before the trial court reveals that the prosecution called a total of eleven (11) witnesses. All the Appellants gave unsworn statements of defence without calling any witnesses.

31. It was the prosecution case that PW1 – Daniel Gitahi Wanjoki was a taxi operator at Gilgil using motor vehicle Reg. No. KCC 284R (PEXB 1). On 24th December, 2018 @ 4pm he was approached by a customer who wanted a taxi to take him to Nyondia to collect flowers and take them to Nakuru. They agreed on a price of Ksh 4,500/= for the service. They took time together getting cartons for the customers before leaving. They then passed by the petrol station to fuel, and the customer gave him Ksh 1,500/= for fuel. As they travelled the customer sat at the co-driver’s seat.

32. On the way he was informed by the customer of a helper they were to pick along the road. The helper was called and he picked him at the junction to the flower farm. The said helper sat at the back-left seat so PW1 did not see him clearly. On an unpaved feeder road, he was forced to drive slowly and it was at that point that the helper grabbed him by the neck. They were joined by two other people who sat at the back. The time by then was 5pm. This customer commanded him to relinquish the vehicle which he did as he was overwhelmed.

33. He was pushed to the back, tied up and his face covered. Ksh 2,400/= in his pocket was taken away. He was later pushed out of the vehicle and taken to a forest by two of the people who later disappeared. He was assisted and reported the matter to Naivasha police station. He suffered a neck injury. He was able to identify his customer as the 3rd appellant. This was through an identification parade.

34. PW2 John Gaita Muriuki with his cousins Brian and Sammy drove to Chawaka supermarket to buy liquor, on 31st December, 2018 at 11pm. Upon their return and while approaching their gate he felt torch lights then saw a pistol. His Infinix phone and Ksh 1,500/= were taken away. The attackers told them to alight and were pushed to the back seat. There was torch light and he was able to see the driver who kept turning his head to talk to the person sitting on him. They were made to alight at a forest. He was made to give out his Mpesa pin number. They were left tied up in the forest. Sammy who was not tied assisted them and they went to a church where they sought assistance. The matter was reported at Gilgil police station.

35. He stated that the person who took over the driving of the vehicle was a tall man whom he identified as the 1st appellant. One of the attackers was short and heavyset and he identified him as the 3rd Appellant. All the identifications were conducted through a parade.

36. PW3 Joseph Kariuki Njehia a taxi operator was on 27th December, 2018 at 11 am telephoned by a customer requesting for taxi services. He however told him he was not available as he was engaged. At 4 pm the person called again for the same reason. They met at 7 pm at his work place. He was to ferry a patient from Gilgil to Ewaso. They took some time talking and making inquiries. They agreed on a payment of shs 5,000/=. The customer paid him an initial Ksh 2,500/= and he fueled his car Reg No. KCQ 311M (PEXB 2). They took off and stopped at Delamere for the customer to buy yogurt and biscuits. The customer was giving him directions and after GTI college he directed him to a particular plot where he saw someone lying down while covered with a Maasai leso, as another one stood there.

37. The headlight was on these two people, and he was told to turn the car. The customer alighted to assist the others. PW3 was requested to alight and assist them which he did. Just as he was about to open the door he was hit on the head four (4) times and fainted. His leg was hit and it broke. He was placed in the vehicle and shown a gun. The motor vehicle was then driven by a tall man who slapped him for looking at him. The customer and the supposed to be patient sat on him at the back seat. He described the “patient” as being short and slightly stout. He was left with the two in the forest. They asked for his Mpesa pin which they used to transfer his Ksh 4,500/= to a woman called Joyce. They also searched his pocket and took Ksh 900/=.

38. The two attackers left him at 1. 00am after which he crawled to the road where a boda boda rider took him to Gilgil sub county hospital (PEXB 3) and police were alerted. He was later taken to Kijabe hospital. He described his customer to the police, and was later able to identify him as the 2nd Appellant at the identification parade.

39. PW4 – Michael Cyrus Simbiri had on 28th December, 2018 been at the stage when he saw Mr. Njue talking to a man who looked like a Maasai but is a Samburu from their conversation. Mr. Njue told him the man had a patient in Gilgil who was to be taken to Ewaso. He approached the person and requested for the work but he told him the work had been given to PW3. The next day he learnt of PW3’s carjacking incident. He ws able to identify the Samburu man as the 1st Appellant at an identification parade. PW6 James Njue Mburu told the court of a man at the stage who specifically wanted the services of PW3. He came back to the service place at 8pm on the same day. The customer did not want PW3 accompanied. The next day he learnt of what had befallen PW3. He was able to identify the customer on an identification parade as the 1st Appellant. PW7 – Sgt Thomas Miruki Koro played a lead role in investigating robberies along the Nairobi – Nakuru highway based on the reports received. Among them were those of PW1, PW2 & PW3. Following tips and CCTV viewing he was able to arrest the 1st & 3rd Appellants. The 3rd Appellant assisted in the arrest of the 2nd Appellant.

40. PW8 Philip Mwangi produced a P3 form confirming the injuries suffered by PW3. PW9 – Inspector Rita Wanekaya conducted the identification parades for the 1st & 2nd Appellants. She produced the parade forms as PEXB4a, 4b and 4c. According to her evidence:i.1st Appellant was identified by PW2 and Samuel Kamau Njane (never testified) PEXB 4aii.2nd Appellant was identified by PW3, PW4, PW5, PW6 (PEXB 4c)The witnesses gave a detailed account of how she had conducted the identification parades and stressed that the investigating officer never took part in the said exercise. The forms were signed by both Appellants.

41. PW10 No. 237047 Inspector Frida Tune conducted the identification parade for the 3rd Appellant. She explained how the exercise was conducted. She stated that the said Appellant was identified by PW1. The parade form was produced as (PEXB 5)

42. PW11 No. 76861 P. C. Charles Ruto was the Investigating Officer. He did a summary of the prosecution case. He explained how the matter was reported and investigated leading to the arrest and charging of the appellants.

43. The first Appellant Samuel Mwangi Wambui unsworn stated that on 23rd December, 2018 he drove home (Laikipia) from Nakuru where he lives for Christmas. He returned to Nakuru on 2nd January, 2019 where he works as a driver. He was arrested on 6th January, 2019 as he waited for transport. He was taken to Kikopey police station, where he met other suspects. He witnessed the 2nd Appellant being beaten by PW8 using some weapon. He stated that he was implicated in this case because he witnessed the serious assault by the police on the 2nd Appellant.

44. In his unsworn defence the 2nd Appellant Michael Lenkilili alias Leshan explained how he was in Maralal on 28th December, 2018 buying goats and returned to Kikopey Nakuru to sell them. On 30th December, 2018 he returned to Maralal where he stayed upto 3rd January, 2019 when he travelled to Gilgil to sell goats. On 4th January, 2019 he was with Peter Mungai Ndirangu and another woman beside the road when he was arrested by the police. There was a fracas as a result of which he was injured, (DEXB 1). He stated that the evidence was manipulated to fix him. He wondered why Peter Mungai was not charged together with him.

45. The 3rd Appellant Stephen Kihungu Kariuki also unsworn stated that on 24th December, 2018 he had gone to collect sand from Kamathatha and travelled back to Gilgil. On 5th January, 2019 Samuel Maina who had been arrested called seeking his assistance at Gilgil police station. As he was with the sand broker the police arrested him after arguments and even fighting. At the station he found Joseph Maina who had been accused of stealing sand. He was however released when the matter was sorted out.

Analysis and Determination 46. This being the first appeal this court has a duty to reconsider and re-evaluate the evidence and arrive at its own conclusion. It must bear in mind that it did not see nor hear the witnesses and so give an allowance for that. See – Kiilu & another v Republic [2005] IKLR 174, Okeno v Republic [1972] E.A 32.

47. After considering the evidence on record, all submissions, cited authorities & the law I find the issues falling for determination to be as follows:i.Whether a charge of robbery with violence contrary to section 296(2) Penal code was established.ii.Whether each of the Appellants was properly identified as a culprit.iii.Whether the convictions were merited?iv.Whether the sentences meted against the Appellants are lawful

Issue No. (i) Whether a charge of robbery with violence contrary to section 296(2) Penal code was established: 48. For a charge of robbery with violence contrary to section 296(2) of the Penal code to be proved, any one of the following ingredients must be established as to having accompanied the stealing. These are:i.The offender was armed with a dangerous/offensive weapon or instrument.ORii.The offender was in company of one or more other person or persons.ORiii.At or immediately before or immediately after the time of the robbery, the offender wounded, beat, struck or used other personal violence to any personSee Oluoch v Republic [1957] eKLR; Donal Majiwa Achiwa & 2 othes v Republic [2009] eKLR.

49. Upon analysis of the evidence adduced by the complainants, the medical evidence by PW8, I am satisfied that the ingredients required to establish a charge of robbery with violence was established as follows:i.The complainants’ vehicles, money. Phone were stolen.ii.In each incident the thieves were more than one.iii.The victims were assaultediv.The thieves were armed with a pistol which is a dangerous weapon.

Issue No. (ii) Whether each of the Appellants was properly identified as a culprit. 50. Each of the Appellants challenged the identification parades conducted by the police. They each set out the reasons for castigating the police on this issue. Their reasons have been well covered in their various submissions and I will therefore not rehash them here.

51. Counsel for the respondent submitted that identification parades were conducted and all the Appellants were identified as the men who robbed the complainants. Further that the forms were produced as exhibits (PEXB 4a-c).

52. The procedures governing police identification parades are provided for in the Police Force Standing Orders pursuant to the National Police Service Act No 11A of 2011. These procedures were explained in the case of R v Mwango s/o Manaa [1936] 3 EACA 29 and Ssentale v Uganda [1968] E.A.L.R 365. The rules include the following:a.The accused has the right to have an advocate or friend present at the parade;b.The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness;c.Witnesses should be shown the parade separately and should not discuss the parade among themselves;d.The number of suspects in the parade should be eight (or 10 in the case of two suspects);e.All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race;f.Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; andg.As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts.

53. This court has looked at the evidence of PW9 and PW10 which testimony is in regard to the 1st, 2nd and 3rd Appellants’ identification parades. It is noted that PW9 & PW10 explained what they did prior to and after the exercise. After the processes being explained to the Appellants they elected to participate in the identification parades. The two witnesses were thoroughly cross examined by the 1st, 2nd and 3rd Appellants in regard to their identification parades and this court finds that no violations were pointed out. The Appellants signed the forms confirming satisfaction with the exercise. The challenge is only being raised in the Appeals and is not supported by what transpired during the parades.

Issue No. (iii) Whether the convictions were merited 54. The 1st and 3rd Appellants were charged with four counts of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal code. The 2nd Appellant was charged with two counts of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code.

55. In the case of Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 & E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR), the court stated at paragraph 54:‘To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.”

56. PW1 in his examination in chief stated that he spent more than one hour with the 3rd Appellant and therefore he could positively identify him as the assailant. He further stated that he familiarized himself with the 3rd Appellant when he was talking and conversing with him and he became familiar with his facial features, colour and voice. As he drove before the attack the 3rd Appellant sat on the co-driver’s seat, in the same vehicle with him, and he was able to see him well.

57. PW2 in his examination in chief identified the 1st Appellant and the 3rd Appellants as his attackers. He stated that during the robbery they were told to alight and they were pushed on the back seat. He also stated that while he was lying on the seat, someone sat on him and the torch light was on. The driver kept saying they should ensure they are not identified however PW2 was able to see the driver well by use of the torch lights as he kept turning to the person who sat on him (PW1). This driver was identified by the witness as the 1st Appellant.

58. PW3 also spent substantial time with the assailant when this offence was committed. He was able to identify his customer during the conduct of the identification parades. This customer is the 2nd Appellant.

59. This Court has looked at the witness testimonies of the prosecution witnesses and found that the Respondent discharged its burden of proving the cases against the 1st, 2nd and 3rd Appellants beyond reasonable doubt. The trial court cannot therefore he faulted for convicting the 1st, 2nd and 3rd Appellants as there is sufficient evidence to support their convictions on the three (3) counts.

Issue No. (iv) Whether the sentences meted against the Appellants were lawful 60. The 1st Appellant in his grounds of appeal states that the learned trial magistrate erred in law and fact by awarding sentences of 30 years in each of the three counts with an order that they run consecutively instead of concurrently. The 3rd Appellant states in his grounds of appeal that the sentence was harsh.

61. In the case of Republic v Jagani and another [2001] KLR 590, the High Court stated that:“The purpose of a sentence is usually to disapprove or denounce unlawful conduct as a deterrent to deter the offender from committing the offence, to separate offenders from society if necessary to assist in rehabilitation of offenders, and in retribution by providing for reparation for harm done to victims in particular and to society in general. It is also seen as promoting a source of responsibility in offenders.”

62. This court is also guided by the decision in 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.”

63. This Court has looked at the Sentencing Policy Guidelines which provide as follows:7. 13. 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 sentence should run consecutively.7. 14The discretion to impose concurrent or consecutive sentences lies in the court.

64. Based on the charges against the Appellants, the offences in the three counts were committed in different transactions, on different dates, and against different complainants. I therefore find that the order by the trial court for the sentences to run consecutively is within the law and requires no interference by this court.

65. The upshot is that the Appeals lack merit and are all dismissed. The convictions and sentences by the trial court are upheld.

66. Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 3RD DAY OF NOVEMBER, 2023 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE