Dushimimana Dani v Republic [2017] KEHC 3220 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

CRIMINAL REVISION NO. 51 OF 2017

BETWEEN

DUSHIMIMANA DANI...............................APPLICANT

AND

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

(Being revision of the order of Hon. C. Yalwala, PM dated 5th July 2017 in Criminal Case No. 386 of 2017 at the Chief Magistrates Court at Kisumu)

RULING

1. This ruling is made under the supervisory jurisdiction of the High Court in criminal cases provided in sections 362 to 366of the Criminal Procedure Code. Section 362 specifically provides that:

362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

2. The accused, DUSHIMIMANA DANI, faced the following counts before the trial court. In Count 1 he was charged with being unlawfully present in Kenya contrary to section 53(1) J and 53(2) of theKenya Citizenship and immigration Act 2011. The particulars were that on 4th July 2017 at Patel flats area in Kisumu within Kisumu County, being a Rwandese national, he was found to be unlawfully present in the country in that he had no valid immigration status in contravention of the Kenya Citizenship and Immigration Act 2011.

3. In Count 2, the accused was charged with engaging in business without being authorized to do so by a work permit or a pass, contrary to section 53(1) m as read withsection 53(2)of theKenya Citizenship and Immigration Act2011. The particulars were that on 4th July 2017 at Kisumu town within Kisumu County, being Rwandese national, he was found engaging in hawking business without being authorized to do so by permit or pass in contravention of the Kenyan Citizenship and Immigration Act 2011.

4. The appellant was convicted on his own plea of guilty and sentenced to pay a fine of Kshs 100,000. 00 or in default one-year imprisonment on Count 1 and on Count 2 he was sentenced to pay a fine of Kshs 50,000. 00 or serve 6 months’ imprisonment. The trial magistrate ordered that the sentences run consecutively.

5. The Sentencing Policy Guidelines provide for imposition of concurrent and consecutive sentences 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. 14 The discretion to impose concurrent or consecutive sentences lies in the court.

6. This Guideline is supported by several authorities among them Sawedi Mukasa s/o Abdulla Aligwaisa v R [1946] 13 EACA 97 and Peter Mbugua Kabui v Republic NRB CA Criminal Appeal No. 66 of 2015[2016]eKLR.

7. Since the accused was charged with offences flowing from the same set of facts, I find and hold that the trial magistrate erred in imposing consecutive sentences when the offence was clearly committed as one transaction. In his sentencing notes, the trial magistrate did not explain why consecutive sentences were necessary in this case.

8. I set aside the consecutive sentences and substitute the same with an order that the sentences run concurrently. In addition, I reduce the sentences to time served and direct that the accused be repatriated to his country of origin forthwith.

DATED and DELIVERED at KISUMUthis 6thday of October2017.

D. S. MAJANJA

JUDGE