Issac Momanyi Nyakundi & Peter Anyango v Republic [2016] KEHC 191 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 106 OF 2015

ISSAC MOMANYI NYAKUNDI .......1ST APPELLANT

PETER ANYANGO ........................ 2ND APPELLANT

VERSUS

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

(Appeal from the Sentence of the Chief Magistrate’s Court at Molo, Hon. H. M. Nyaga– Chief  Magistrate delivered on the 13th April 2015  in  CMCR Case No. 966 of 2015)

JUDGEMENT

The two accused persons ISSAC MOMANYI NYAKUNDI (hereinafter referred to as the 1st Appellant) and PETER ANYANGO (herein after referred to as the 2nd Appellant), both faced two (2) counts of BREAKING INTO A BUILDING AND COMMITTING A FELONY CONTRARY TO SECTION 306(a) PENAL CODE. In addition the 2nd appellant faced a charge of BEING IN POSSESSION OF CANNABIS SATIVA. The appellants both pleaded ‘Guilty’ to the charges. Each was convicted on their own plea of Guilty and sentences to serve four (4) years on Count No. 1, three (3) years on Count Nos 2, and 3. The 1st appellant was sentenced to 1 year imprisonment on Count No. 4 and the 2nd appellant was sentenced to serve 1 year on Count No. 4.

At the hearing of their appeals the appellants both indicated that they do not seek to challenge the convictions. They each only seek to appeal against their sentences.

MS OUNDO learned State Counsel conceded the appeal only in respect to the 2nd appellant on Count No. 3. As she rightly pointed out that conviction was erroneous as no report was availed in the lower court to prove that the plant material recovered on the 2nd appellant was in fact Cannabis Sativa.I therefore allow the appeal of the 2nd appellant and set aside his sentence on Count No. 3.

Regarding the remaining sentences counsel opposed the appeal. I have looked at the charges. I note that the Burglary incidents all occurred on the same date. The appellants  both pleaded guilty thus doing away with the need for a lengthy trial. I therefore allow their appeal against sentence and I direct that the sentences imposed by the lower court being lawful are hereby upheld but those sentences will be served concurrently. It is so ordered.

Dated in Nakuru this 7th day of November, 2016.

Both appellants present in person.

Maureen A. Odero

Judge

7/11/2016