Alex Mukhwana v Republic [2019] KEHC 11522 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION NO.445 OF 2015

ALEX MUKHWANA................................................APPLICANT

VERSUS

REPUBLIC............................................................RESPONDENT

RULING

The Applicant, Alex Mukhwana was charged with two others with the offence of preparation to commit a felony contrary to Section 308(1) of the Penal Code. The particulars of the offence were that on 3rd August 2011 at Buruburu Estate in Nairobi County, the Applicant was found with dangerous or offensive weapons namely, firearms, in circumstances that indicated that they were so armed with the intent to commit a felony namely robbery with violence. The Applicant was further charged with being in possession of an imitation firearm contrary to Section 34(1) of the Firearms Act. The particulars of the offence were that on the same day and in the same place, the Applicant was found in unlawful possession of imitation firearm namely a homemade gun with the intent to commit a felony.

When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charges. After full trial, he was found guilty as charged. The Applicant was sentenced to serve five (5) years imprisonment in respect of each count. The trial court did not indicate whether the sentences would run consecutively or concurrently. With that omission, the effect was that the Applicant is now serving consecutive custodial sentences of five (5) years imprisonment i.e. the Applicant will serve ten (10) years imprisonment.

The Applicant made an application before court seeking to obtain orderS from this court that the custodial sentences do run concurrently instead of consecutively. The Applicant further pleaded with the court to consider the period that he was in remand custody before his conviction. He further urged the court to consider his plea for leniency so that it reduces the custodial sentence to the period served. Mr. Momanyi for the State did not object to the application.

This court has carefully considered the Applicant’s application for review of sentence. The Applicant is not appealing against conviction. The Applicant’s co-accused in the trial court filed their respective appeals being Nairobi High Court Criminal Appeal Nos.158 and 159 of 2015. This court considered the said appeal and delivered its judgment on 13th March 2019. In the judgment, the court noted that the Applicant’s co-accused custodial sentence ought to have run concurrently instead of consecutively. Applying the principle of equality in this case, this court agrees with the Applicant that the two custodial sentences of five (5) years imprisonment that he was sentenced to serve on 11th September 2015 should run concurrently instead of consecutively.

The Applicant pleaded with the court to consider the period that he was in remand custody prior to his release on bail pending trial. The Applicant was arrested on 3rd August 2011. He was in remand custody until 8th November 2012 when he was released on bail pending trial. This is a period of one (1) year and three (3) months. This period should have been taken into account by the trial court when it sentenced the Applicant to serve the custodial sentence on 11th September 2015. Since this period was not taken into account, and taking into account the period that the Applicant has been in prison, this court formed the view that the Applicant has been sufficiently punished.

In the premises therefore, the custodial sentence of the Applicant is first ordered to be served concurrently instead of consecutively and secondly, that consolidated period is commuted to the period served. The Applicant is ordered set at liberty forthwith and ordered released from prison unless otherwise lawfully held.

DATED AT NAIROBI THIS 4TH DAY OF JULY 2019

L. KIMARU

JUDGE