Joshua Nyabuto Barongo v Republic [2017] KEHC 2833 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL MISCELLANEOUS CASE NO. 34 OF 2017

JOSHUA NYABUTO BARONGO .................................APPELLANT

VERSUS

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

RULING ON  REVISION

1. The Applicant herein JOSHUA NYABUTO BARONGO has filed an application dated 13th March, 2017 seeking for an Order that this Honourable Court do consolidate the sentences passed by the trial court so as to run concurrently.

2. The Applicant confirms that he was convicted and sentenced vide Machakos Chief Magistrate’s Court Criminal Case Number 346 of 2016wherein he was ordered to serve five (5) years imprisonment for the offence of stealing in a dwelling house and was further ordered to serve three (3) years imprisonment for the offence of impersonating a police officer.  He further confirms that the said sentences were ordered by the trial court to run consecutively.

3. The Respondent through Mr. Machogu learned counsel for the Respondent indicated that they are not opposed to the Applicant’s Application.

4. A perusal of the record of the trial court confirms that the Applicant kept on requesting for the charges to be read afresh which the trial court duly acceded to and upon a plea of guilty being entered the trial court called for a pre-sentence report.  The pre-sentence report was not favourable for a non custodial sentence and that the trial court on the 3/1/2017 ordered the Applicant to serve five (5) years and three (3) years imprisonment for the offences of stealing in a dwelling house contrary to section 279(b) and impersonating a public officer contrary to Section 105(b) of the Penal code respectively.

5. As the Respondent is not opposed to the request by the Applicant to have the sentence s to run concurrently, I allow the Application by the Applicant.  Indeed a trial court has discretion to order for sentences to run consecutively depending on the circumstances of each case placed before it.  However, sentencing policy, public policy as well as the need to do justice dictates that sentences meted out by trial courts upon conviction of offenders facing charges in one charge sheet ought to run concurrently.  The applicant herein was facing charges committed on the same day and upon his conviction, it is only fair and just that the sentences do run concurrently.

6. In the result the trial Court’s Orders dated 3/1/2017 are reviewed.  The Applicant is now ordered to serve five (5) years imprisonment and three (3) years imprisonment for the two offences of stealing in a dwelling house and impersonating a public officer respectively and which sentences shall run concurrently from 3/1/2017.

It is so ordered.

Dated, signed and delivered at MACHAKOS this 11thday of OCTOBER 2017.

D.K. KEMEI

JUDGE

In the presence of:-

Joshua Nybuto Barongo  - Applicant

Machogu for Respondent

C/A: Kituva