Kimani Leleruk v Republic [2017] KEHC 5250 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO. 98 OF 2016

KIMANI LELERUK  ……………….....……… APPELLANT

Versus

REPUBLIC ………………………………… RESPONDENT

(Being an appeal from the original conviction and sentence in

Maralal Principal Magistrate’s Court Criminal Case No. 617 of 2015

by Hon. C N Ndegwa – Principal  Magistrate on 8th March 2016 )

JUDGMENT

1. KIMANI  LELERUK was charged and  convicted before the Principal Magistrate’s Court at Maralal for the offences of Causing  grievous  harm Contrary  to Section  234  of the Penal Code Cap 63,and  the offence of being in illegal possession of firearm Contrary  to Section 89 (1) of Cap 63 on the second  count, and being in illegal possession of ammunition Contrary  to Section 89 (1)  of Cap  63 on count three.The trial court sentenced Kimani on all Counts to 7 years respectively. All those sentences were to run consecutively.

2. Kimani was aggrieved by the conviction and sentence but at the hearing of his appeal he abandoned his appeal against conviction and proceeded with his appeal against sentence.

3. Kimani by his  written submissions requested the court to reduce his  sentence and to give him a second  chance in life; he submitted  that he  had reformed and would not be  a repeat  offender; and that he is married and  that his single  mother relies on him.

4. In his oral submissions before court he requested that this court does order his sentences to run concurrently.

5. Learned Principal Prosecution Counsel Mr Tanui submitted that the 7 years on each count was commensurative of the offences. He however submitted that the three counts were of the same transaction and the sentence thereof should have run concurrently.

6. The prosecution’s case was that Kimani shot the complaint on both legs while she gathered firewood. The complainant was taken to hospital and Kimani was arrested while in possession of an AK47 firearm and ammunition. Evidence was tendered that the shots to the complainant were from the firearm found with Kimani. It follows from that narration that the counts were of the same transaction. As correctly submitted by Mr Tanui the sentences of the three counts ought to have run concurrently.

7. The  court of appeal in the case, PETER  MBUGUA KABUI – V-  REPUBLIC  [2016] eKLR held that:

“In the case of Sawedi Mukasa s/o Abdulla Aligwaisa [1946] 13 EACA 97, the then Court of Appeal for Eastern Africa in a judgment read by Sir, Joseph Sheridan stated that the practice is where a person commits more than one offence at the same time and in the same transaction, save in very exceptional circumstances, to impose concurrent sentences. That is still good practice.

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.”

8. It follows that the correct sentence that the trial should have meted out was concurrent sentence.  The 7 years sentence however do not attract interference of this court. This court orders that the appellant’s sentence by the trial court of 7 years on each of the three counts shall run concurrently.  To that extent appellant’s appeal succeeds.

9. It is so ordered.

DATED AND DELIVERED THIS 7th DAY OF JUNE 2017

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant – Njue/Mariastella

Appellant: Kimani Leleruk   ……………….………….

For the State: ….............................................

Language …………………………………………………….

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE