Muli Kioko v Republic [2016] KEHC 3723 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL REVISION CASE NO. 2 OF 2016

MULI KIOKO......................APPLICANT

VERSUS

REPUBLIC …………… RESPONDENT

R U L I N G

1. Pursuant to a letter written by Muli Kioko(Applicant), a convict, seeking leniency, I called for the record of proceedings in the subordinate court presided over by Hon. Lesootia, Ag. Senior Resident Magistratein order to satisfy myself of correctness, legality and propriety of the sentence meted out.

2. The Applicant was jointly charged with Musyoka Malindaand Ileli Kitui with the offence of Burglarycontrary to Section 304(2)and Stealingcontrary to Section 279(b)of the Penal Code.Particulars were that on the nights of 17thand 18thday of May, 2013at unknown time, at Kangondi Location, Kangondi Sub-locationin Kitui Countyjointly broke and entered the dwelling house of Christine Mutemiwith intent to steal therein and did steal from therein one hurricane lamp, one mattress, three sufurias, two bed sheets and one bed cover all valued at Kshs. 8,000/=the property of Christine Mutemi.

3. In the alternative, they faced a charge of Handling Stolen Goodscontrary to Section 322of the Penal Code.Particulars were that on the 18thday of May, 2013at about 11. 00 a.m.,at Kangondi Location, Kangondi Sub-locationin Kitui Countyotherwise than in the cause of stealing dishonestly retained one hurricane lamp, one mattress, three sufurias, two bed sheets and a bed cover all valued at Kshs. 8,000/=the property of Christine Mutemi.

4. They pleaded guilty to the main charge at the outset and were sentenced to serve three (3) years imprisonment on each limb of the charge.  The sentences were to run consecutively.

5. In the case of Sawedi Mukasa s/o Abdulla Aligwaisa (1946) 13 EA CA 97,the Court of Appeal for Eastern Africa stated that the practice is, where a person commits more than one offence at the same time and in the same transaction, save in exceptional circumstances, to impose concurrent sentences.

6. In Peter Mbugua Kabui vs. Republic (2016) eKLRit was stated that:

“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.”

7. The offence committed by the Applicant and his Co-accuseds were committed in a single transaction.  All of them were first offenders.  The trial court should have sentenced them to serve the sentences concurrently.

8. The Applicant and his Co-convicts have already served more than three (3) years imprisonment.  In the result, I set aside the sentence imposed and reduce it to the term already served in respect of all the offenders.  Consequently, all the three convicts/offenders shall be released forthwith unless otherwise lawfully held.

9. It is so ordered.

Dated, Signedand Deliveredat Kituithis 20thday of July,2016.

L. N. MUTENDE

JUDGE