1. Charles Kamau Waruguru, the Applicant was indicted in three (3) different matters but arraigned on the same day, the 12th August, 2024.
2. In Nyahururu CMCRC No. E1109/24 the Applicant faced the charge of Stealing contrary to Section 268 as read with Section 275 of the Penal Code. Particulars being that on the 27th day of October, 2024, at around 0610hours at Ndaragwa Township he stole one Sub-woofer make Golden Tech worth Kshs.10,000/- and one 16GB USB Device worth Kshs.1,300/- the property of John Kigera.
3. In the alternative, he faced the charge of Handling stolen goods contrary to Section 322(1) (2) of the Penal Code. Particulars being that on the 28th day of October, 2024, at Ndaragwa Township, Nyandarua North Sub-County, within Nyandarua County otherwise than in the course of stealing, he dishonestly received one golden tech sub-woofer and one 16GB USB devise knowingly or having reasons to believe them to be stolen goods.
4. He pleaded guilty to the main charge and was sentenced to serve three (3) years imprisonment.
5. In CMCRC No. E1110 of 2024 the Applicant faced the charge of Stealing contrary to Section 268 as read with Section 275 of the Penal code. Particulars being that on the 28th day of September, 2024, at around 1600hours at Ndaragwa Township in Nyandarua North Sub-County within Nyandarua County he stole one mobile phone make Guava worth Kshs.1,300/- property of Elizabeth Waithera.
6. In the alternative he faced the charge of Handling stolen goods contrary to Section 322(1) (2) of the Penal Code. Particulars being that on the 28th day of October, 2024, at Ndaragwa Township Nyandarua North Sub-County, within Nyandarua County otherwise than in the course of stealing, he dishonestly received mobile phone make Guava knowingly or having reason to believe them to be stolen goods.
7. He admitted the main charge at the outset, was convicted and sentenced to serve three (3) years imprisonment.
8. In CMCRC No. E1111 of 2024 the Applicant was charged with the offence of Stealing contrary to Section contrary to Section 268 as read with Section 275 of the Penal Code. Particulars being that on the 28th day of October, 2024, at around 0610hours at Ndaragwa Township in Nyandarua North Sub-County within Nyandarua County he stole one 6kg Oil Libya Gas Cylinder worth kshs.5,000/- property of Wakaba Njuguna.
9. In the alternative he faced the charge of Handling stolen goods contrary to Section 322(1) (2) of the Penal Code. Particulars being that on the 28th day of October, 2024, at Ndaragwa Township, Nyandarua North Sub-County, within Nyandarua County otherwise than in the course of stealing, he dishonestly received one gas cylinder knowingly or having reasons to believe them to be stolen goods.
10. Having admitted the main charge, he was convicted and sentenced to serve three (3) years imprisonment.
11. Through an amended application for revision, the Applicant seeks review of the sentences that have been computed to a period of 9 years imprisonment. He expresses remorse for the offences committed. That the High Court is obligated to promote and uphold Article 159(2) of the Constitution. He prays for an order directing the sentences in the three (3) matters to run concurrently.
12. It is urged by the Applicant that this court has the jurisdiction to review orders by the trial court. He called upon the court to be guided by the case of Boniface Waweru v Mary Njeri & Another HC Misc. App. No. 639 of 2005; the sentencing guidelines 2026 and 2023; and Article 50(2) (p) of the Constitution,2010.
13. The State through learned prosecution counsel, Assistant Director of Public Prosecutions, Ms. Gladys Kariuki submitted that Section 12 and 14 of the Criminal Procedure Code provides for instances when sentences can run concurrently or consecutively.
14. Also, referred is Section 37 of the Penal Code that provides thus;
Sentences when cumulative: Where a person after conviction for an offence is convicted of another offences, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof…”
15. Reliance is also placed on BMN v Republic Criminal Appeal No. 91 of 2013 [2014] eKLR where the Court of Appeal dealing with a similar situation pronounced itself thus;
“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 transaction, 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.”
16. Also cited is the case of Willian Kimani Ndichu v Republic [2015] eKLR where the Court of Appeal referred to Saidi Nsubuga s/o Juma & Another (1941) 8 EACA 81 and Nathani v Republic (1965) EA 777 where the phrase “same transaction” was defined thus;
“…If a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose or by the relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.”
17. In the result, it is urged that the series of facts of the three (3) offences were connected by proximity of time, criminal intent and continuity of action therefore qualifying to be offences committed in the same transaction. That the Lower Court was however silent on the manner the three (3) offences as imposed were to run. That the Applicant’s plea is tenable.
18. I have considered arguments put forth. In particular the Applicant seeks review of sentence. The law applicable to revision is provided for in Article 165(6) & (7) of the Constitution that provide thus;
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
19. The statute also provides for revision in Section 362 of the Criminal Procedure Code that enacts thus;
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
20. The High Court has power to review, amend and modify a sentence imposed by a lower court to ensure the sentence is appropriate, legal and justified based on the facts and circumstances in which the case was committed. The court would also consider whether the sentence was manifestly erroneous, excessive and legally improper or irregular. The court in the circumstances focuses on the correctness of the sentence imposed.
21. The Applicant was charged in three different cases resulting into multiple trials. The initial offence was committed on 26th September, 2024 at Ndaragwa, the complainant being Elizabeth Waithera (see E1110/2024); The 2nd offence was committed on 27th October,2024, at about 0610 hours at Ndaragwa Township and the complainant was John Kigera; (see E 1109/24); and, the 3rd Offence was committed on 28th October, 2024 at around 0610 hours at Ndaragwa Township. The complainant was Wakaba Njuguna ( See E 1111/24).
22. Ideally, these would have been counts in the same matter. So that the offences could be prosecuted together and not separately. Ordinarily, courts allow multiple criminal acts to be joined in a single trial if they arise from the same occurrence so as to avoid multiple trials and encourage efficiency. That notwithstanding, the Sentencing Policy Guidelines provides that;
7.13 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.
7.14 The discretion to impose concurrent or consecutive sentences lies in the court.
23. Taking into consideration what was stated by the Court of Appeal in BMN case (Supra), the sentences were in different cases not so interrelated and the complainants were different, therefore, there was no illegality in imposing consecutive sentences per the case tried to run in a successive order.
24. However, looking at the sentences meted out, Section 275 of the Penal Code provides thus;
Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.
25. The objective of sentencing is to address circumstances of the offence, the offender and also the public. It should be intended to deter the offender and others in the community from committing such offences. The community at Ndaragwa should be protected from offenders like the Applicant herein but at the same time it calls for rehabilitation. The offender should reform.
26. I have perused pre-sentence reports that were filed in respect of the Applicant. It was concluded that he could not benefit from non-custodian sentence. However, he was a first offender, hence the maximum sentence imposed in each matter was severe.
27. In Ogolla s/o Owour v Regimen [1954] EACA, the Court stated thus;
"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)." See also Omuse - v- R (supra) while in the case of Shadrack Kipkoech Kogo - vs - R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-
sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”
28. In Bernard Kimani Gacheru v Republic [2002]KECA 94 (KLR) the Court stated that;
“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 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.”
29. The Applicant is 20 years old, a young adult who needs guidance. He was a first offender and he saved judicial time by admitting the offences at the outset such that a maximum sentence was uncalled for. In the premises, I do set aside the excessive sentence imposed in each matter which I hereby substitute with a sentence of one (1) year imprisonment in each and every case namely: Nyahururu CMCRC No. E1109/24; CMCRC No. E1110 of 2024; and, CMCRC No. E1111 of 2024, that will be effective from the date of arrest, 10th August, 2024. Sentences that will be executed in a sequential order.
30. It is so ordered.
2. In Nyahururu CMCRC No. E1109/24 the Applicant faced the charge of Stealing contrary to Section 268 as read with Section 275 of the Penal Code. Particulars being that on the 27th day of October, 2024, at around 0610hours at Ndaragwa Township he stole one Sub-woofer make Golden Tech worth Kshs.10,000/- and one 16GB USB Device worth Kshs.1,300/- the property of John Kigera.
3. In the alternative, he faced the charge of Handling stolen goods contrary to Section 322(1) (2) of the Penal Code. Particulars being that on the 28th day of October, 2024, at Ndaragwa Township, Nyandarua North Sub-County, within Nyandarua County otherwise than in the course of stealing, he dishonestly received one golden tech sub-woofer and one 16GB USB devise knowingly or having reasons to believe them to be stolen goods.
4. He pleaded guilty to the main charge and was sentenced to serve three (3) years imprisonment.
5. In CMCRC No. E1110 of 2024 the Applicant faced the charge of Stealing contrary to Section 268 as read with Section 275 of the Penal code. Particulars being that on the 28th day of September, 2024, at around 1600hours at Ndaragwa Township in Nyandarua North Sub-County within Nyandarua County he stole one mobile phone make Guava worth Kshs.1,300/- property of Elizabeth Waithera.
6. In the alternative he faced the charge of Handling stolen goods contrary to Section 322(1) (2) of the Penal Code. Particulars being that on the 28th day of October, 2024, at Ndaragwa Township Nyandarua North Sub-County, within Nyandarua County otherwise than in the course of stealing, he dishonestly received mobile phone make Guava knowingly or having reason to believe them to be stolen goods.
7. He admitted the main charge at the outset, was convicted and sentenced to serve three (3) years imprisonment.
8. In CMCRC No. E1111 of 2024 the Applicant was charged with the offence of Stealing contrary to Section contrary to Section 268 as read with Section 275 of the Penal Code. Particulars being that on the 28th day of October, 2024, at around 0610hours at Ndaragwa Township in Nyandarua North Sub-County within Nyandarua County he stole one 6kg Oil Libya Gas Cylinder worth kshs.5,000/- property of Wakaba Njuguna.
9. In the alternative he faced the charge of Handling stolen goods contrary to Section 322(1) (2) of the Penal Code. Particulars being that on the 28th day of October, 2024, at Ndaragwa Township, Nyandarua North Sub-County, within Nyandarua County otherwise than in the course of stealing, he dishonestly received one gas cylinder knowingly or having reasons to believe them to be stolen goods.
10. Having admitted the main charge, he was convicted and sentenced to serve three (3) years imprisonment.
11. Through an amended application for revision, the Applicant seeks review of the sentences that have been computed to a period of 9 years imprisonment. He expresses remorse for the offences committed. That the High Court is obligated to promote and uphold Article 159(2) of the Constitution. He prays for an order directing the sentences in the three (3) matters to run concurrently.
12. It is urged by the Applicant that this court has the jurisdiction to review orders by the trial court. He called upon the court to be guided by the case of Boniface Waweru v Mary Njeri & Another HC Misc. App. No. 639 of 2005; the sentencing guidelines 2026 and 2023; and Article 50(2) (p) of the Constitution,2010.
13. The State through learned prosecution counsel, Assistant Director of Public Prosecutions, Ms. Gladys Kariuki submitted that Section 12 and 14 of the Criminal Procedure Code provides for instances when sentences can run concurrently or consecutively.
14. Also, referred is Section 37 of the Penal Code that provides thus;
Sentences when cumulative: Where a person after conviction for an offence is convicted of another offences, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof…”
15. Reliance is also placed on BMN v Republic Criminal Appeal No. 91 of 2013 [2014] eKLR where the Court of Appeal dealing with a similar situation pronounced itself thus;
“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 transaction, 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.”
16. Also cited is the case of Willian Kimani Ndichu v Republic [2015] eKLR where the Court of Appeal referred to Saidi Nsubuga s/o Juma & Another (1941) 8 EACA 81 and Nathani v Republic (1965) EA 777 where the phrase “same transaction” was defined thus;
“…If a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose or by the relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.”
17. In the result, it is urged that the series of facts of the three (3) offences were connected by proximity of time, criminal intent and continuity of action therefore qualifying to be offences committed in the same transaction. That the Lower Court was however silent on the manner the three (3) offences as imposed were to run. That the Applicant’s plea is tenable.
18. I have considered arguments put forth. In particular the Applicant seeks review of sentence. The law applicable to revision is provided for in Article 165(6) & (7) of the Constitution that provide thus;
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
19. The statute also provides for revision in Section 362 of the Criminal Procedure Code that enacts thus;
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
20. The High Court has power to review, amend and modify a sentence imposed by a lower court to ensure the sentence is appropriate, legal and justified based on the facts and circumstances in which the case was committed. The court would also consider whether the sentence was manifestly erroneous, excessive and legally improper or irregular. The court in the circumstances focuses on the correctness of the sentence imposed.
21. The Applicant was charged in three different cases resulting into multiple trials. The initial offence was committed on 26th September, 2024 at Ndaragwa, the complainant being Elizabeth Waithera (see E1110/2024); The 2nd offence was committed on 27th October,2024, at about 0610 hours at Ndaragwa Township and the complainant was John Kigera; (see E 1109/24); and, the 3rd Offence was committed on 28th October, 2024 at around 0610 hours at Ndaragwa Township. The complainant was Wakaba Njuguna ( See E 1111/24).
22. Ideally, these would have been counts in the same matter. So that the offences could be prosecuted together and not separately. Ordinarily, courts allow multiple criminal acts to be joined in a single trial if they arise from the same occurrence so as to avoid multiple trials and encourage efficiency. That notwithstanding, the Sentencing Policy Guidelines provides that;
7.13 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.
7.14 The discretion to impose concurrent or consecutive sentences lies in the court.
23. Taking into consideration what was stated by the Court of Appeal in BMN case (Supra), the sentences were in different cases not so interrelated and the complainants were different, therefore, there was no illegality in imposing consecutive sentences per the case tried to run in a successive order.
24. However, looking at the sentences meted out, Section 275 of the Penal Code provides thus;
Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.
25. The objective of sentencing is to address circumstances of the offence, the offender and also the public. It should be intended to deter the offender and others in the community from committing such offences. The community at Ndaragwa should be protected from offenders like the Applicant herein but at the same time it calls for rehabilitation. The offender should reform.
26. I have perused pre-sentence reports that were filed in respect of the Applicant. It was concluded that he could not benefit from non-custodian sentence. However, he was a first offender, hence the maximum sentence imposed in each matter was severe.
27. In Ogolla s/o Owour v Regimen [1954] EACA, the Court stated thus;
"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)." See also Omuse - v- R (supra) while in the case of Shadrack Kipkoech Kogo - vs - R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-
sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”
28. In Bernard Kimani Gacheru v Republic [2002]KECA 94 (KLR) the Court stated that;
“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 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.”
29. The Applicant is 20 years old, a young adult who needs guidance. He was a first offender and he saved judicial time by admitting the offences at the outset such that a maximum sentence was uncalled for. In the premises, I do set aside the excessive sentence imposed in each matter which I hereby substitute with a sentence of one (1) year imprisonment in each and every case namely: Nyahururu CMCRC No. E1109/24; CMCRC No. E1110 of 2024; and, CMCRC No. E1111 of 2024, that will be effective from the date of arrest, 10th August, 2024. Sentences that will be executed in a sequential order.
30. It is so ordered.