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JudgmentDAVID MWENDA THANYAKU VS The Republic9 min read

DAVID MWENDA THANYAKU VS The Republic

High Court at Milimani High Court · · Lilian Mutende


  1. David Mwenda Thanyaku alias Sospeter Machuki Onchieku, the Applicant, was charged with fourteen (14) counts.  He faced six (6) counts of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code, having stolen a cumulative sum of Ksh. 18,000,000/- money that was stolen from Kenya Commercial Bank, Hurlingham Branch on different dates. To do so he forged an Identity Card No. 12598224 Serial Number 203246763 in the name of Sospeter Onchieku which he uttered to six (6) different tellers at the Bank, having personated the alleged Sospeter Machuki Onchieku.
  2. He was taken though full trial, convicted and sentenced on Counts 1,2,3,4,5,6, and 7, and fined Ksh. 300,000/- and, in default to serve twelve (12) months imprisonment; on Counts 8,9,10,11,12, and 13, he was fined Ksh. 100,000/- and in default he was to serve twelve (12) months imprisonment on each Count; and on Count 14 he was fined Ksh. 50000/- and, in default to serve six (6) months imprisonment.  No directions were however given on how the sentences were to be served.
  3. Through a Notice of Motion dated 13th June, 2023, the applicant seeks revision pursuant to Sections 362 and 364 of the Criminal Procedure Code.  The Main relief sought is for an order to be granted for the sentences to run concurrently.  The applicant’s quest is also to be placed on a non-custodial order, either to serve the sentence under the Probation order of community service order.
  4. The applicant also relies on the provisions of the United Nations Minimum rules for non-custodial sentences and the provisions of Article 2 of the Constitution of Kenya 210.
  5. The application was disposed through written submissions that I have duly considered.  This is a case where the applicant exercising discretion did not opt to appeal but subsequently approached the court through review (See Article 50(2) (q) of the Constitution).
  6. Revisionary Jurisdiction of the High Court entails reviewing the decision of the subordinate court where it exceeds its jurisdiction or grants orders that are illegal or irregular, Section 362 of the Criminal Procedure Code (CPC) provides 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.

  1. The contention of the applicant is in regard to sentence meted out.  A judicial officer has a discretion to impose a sentence as provided by the law.  For that reason this court being an appellate may not interfere with the sentence unless it was based on wrong principles or was harsh and excessive.
  2. In Bernard Kimani Gacheru v Republic (2002) eklr, the Court of Appeal 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.

The position was stated succinctly by the Court of Appeal for East Africa in the case of  OGOLA s/o OWOURA VS REGINUM (1954) 21 270 as follows:

"The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James V R., (1950) 18 E.A.C.A 147:

"It is evident that the Judge has acted upon some wrong principle or overlooked some material factor."

To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R. V Sher shewky, (1912) C.C.A. 28 T.L.R. 364."

  1. Section 12 and 14 of the CPC Provides thus:

12.   Any court may pass a lawful sentence combining any of the sentences which it is authorized by law to pass.

14.  (1)  Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.

(2)  In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.

(3)  Except in cases to which section 7(1) applies, nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences—

(a)  Of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or

(b)  Of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose.

(4)  For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

  1. The court is seized of jurisdiction to mete out combined sentences for several counts.  The court is however obligated to direct whether sentences are to run consecutively or concurrently.  Where the court directs sentences to run consecutively, it means they follow each other continuously.  But, where the order is for the sentence to run concurrently, they run at the same time or consistently.
  2. Notably, the sentence provided for offences that the applicant was arraigned is imprisonment. 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.

  1. Section 349 of the Penal Code provides that:

Any person who forges any document or electronic record is guilty of an offence which, unless otherwise stated, is a felony and he is liable, unless owing to the circumstances of the forgery or the nature of the thing forged some other punishment is provided, to imprisonment for three years.

  1. Section 353 of the Penal Code provides that:

Any person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

  1. Section 36 of the Penal code provides thus:

When in this Code no punishment is specially provided for any misdemeanor, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.

  1. Where the provision of the written law gives the court the discretion not to expressly mete out an imprisonment term solely like in the instant case, the court has the power impose a fine. (See Section 28 of the Penal Code).
  2. Section 37 of the Penal Code clarifies as to how cumulative sentences should be ordered to run.  It provides thus:

Where a person after conviction for an offence is convicted of another offence, 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:

Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof

  1. An interpretation of the above clearly means that Section 333 of the CPC requiring the sentence to run from the date of arrest is practicality  questionable and not germane in yhe instant case.
  2. According to the sentencing Policy Guidelines, Paragraph 23.9 the principle of proportionality is relevant when a sentence is being meted out.  It provides that:

1.  Starting point in determining the term of the custodial sentence: The first step is for the court to establish the custodial sentence set out in the statute for that particular offence. To enable the court to factor in mitigating and aggravating circumstances/factors, the starting point shall be fifty percent of the maximum custodial sentence provided by statute for that particular offence. Having a standard starting point is geared towards actualising the uniformity/impartiality/consistency and accountability/transparency principles set out in paragraphs 3.2 and 3.3 of these guidelines. A starting point of fifty percent provides a scale for the determination of a higher or lower sentence in light of mitigating or aggravating circumstances.

2.  Presence of mitigating circumstances159: The effect of mitigating circumstances/factors is to lessen the term of the custodial sentence. The court shall consider the mitigating circumstances/factors and deduct some time off the fifty percent of the custodial sentence provided by statute for that particular offence. Where the statute has set out a minimum term, the deduction of time in custody cannot go below the minimum sentence.

3.  Presence of aggravating circumstances: The effect of aggravating circumstances/factors is to increase the term of the custodial sentence. The court shall consider the aggravating circumstances/factors and add a length of time to the fifty percent of the sentence provided by statute for that particular offence. The court cannot impose a sentence that goes beyond the custodial term provided by law.

4.  Presence of both aggravating and mitigating circumstances: Where both exist, the court should weigh the aggravating and mitigating circumstances and where mitigating circumstances outweigh the aggravating ones, then the court should proceed as if there is a single mitigating circumstance. Where aggravating circumstances outweigh the mitigating circumstances, the

  1. It is noteworthy that the applicant defrauded unsuspecting complainants a large sum of money.  He committed fraudulent acts that called for deterrent retributive sentence and community protection.  The court did balance interest of the victim and the public as well.  The 18 Million shillings stolen was never recovered hence the sentence meted out was not harsh or excessive. The court was silent on directions of how the sentences were to run, according to the principle of law, they were to run consecutively.
  2. An offender may be placed under probation supervision.  This is subject to good behaviour.  The nature of the offence committed and circumstances in which the offence was committed could not be appropriate for the applicant to be placed on the afore stated non-custodial sentence.
  3. On the question of the applicant being considered to perform community service; Section 3 of the Community Serve Orders provides as follows:

(1) Where any person is convicted of an offence punishable with— (a) imprisonment for a term not exceeding three years, with or without the option of a fine; or (b) imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service.

  1. I have not seen any report from Prison Services to suggest that the applicant has been rehabilitated following the stay in prison.  Therefore, as of now, the applicant is not suitable to be released under the auspices of decongestion of prisons.
  2. The upshot of the above is that the application lacks merit.  Accordingly, it is dismissed.



    DAVID MWENDA THANYAKU VS The Republic DAVID MWENDA THANYAKU VS The Republic