Republic v Mutwiri [2022] KEHC 15801 (KLR)

Republic v Mutwiri (Criminal Appeal E162 of 2021) [2022] KEHC 15801 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15801 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E162 of 2021

TW Cherere, J

December 1, 2022

Between

Republic

Appellant

and

Silvester Mutwiri

Respondent

((Being an appeal against conviction and sentence in Meru Chief Magistrate’s Court Criminal No. E1540 of 2021 by Hon. T.M.Mwangi (SRM) on 27. 09. 2021)

Judgment

1. This appeal arises out of what appellant claims is an error on committal warrant which shows that he is to serve 2 year sentences consecutively for the three counts he was convicted of.

2. This court takes cognizance of the fact that it cannot interfere with the exercise of discretion by the trial magistrate’s court when sentencing the appellant. In Bernard Kimani Gacheru v Republic, Cr App No 188 of 2000 the Court of Appeal stated thus:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. (See also Wanjema v Republic [1971] EA 493. ”

3. The Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR held at Page 25 of its judgment as follows:“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle, ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive.

4. The provisions of the Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary (at para 7. 13) provide that 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 sentences should run consecutively.

5. From the record, it is apparent that the 1st and 2nd counts were committed on the same date against the same complainant and the sentences thereon ought to have run concurrently.

6. For the foregoing reasons, the appeal partially succeeds and it is hereby ordered:1. The sentences of two years in each of the 3 counts is substituted with one year in each count.2. Sentences in count 1 and 2 will run concurrently3. The one-year sentence in count 3 shall run consecutive to the cumulative 1-year sentence in counts 1 and 2

DELIVERED AT MERU THIS 01ST DAY OF DECEMBER 2022WAMAE T W CHEREREJUDGEIn the presence of:Court Assistant - KinotiAppellant - In personFor the respondent - Ms Mwaniki