REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E023 OF 2024
PATRICK NJOGU KIRAGU…………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal against the sentence of Hon. Charity C. Kipkorir, PM in Kerugoya Magistrates Court Criminal Case No. 994 of 2020 delivered on 31/5/2023)
J U D G M E N T
1. Patrick Njogu Kiragu, the appellant herein was convicted in six out of the nine counts he was charged with and sentenced accordingly. The charges were as follows:
a. Count I: Conspiracy to defraud contrary to section 317 of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on diverse dates between 17th September, 2015 and 10th December 2015 at unknown various places in Kirinyaga Central and Kirinyaga West Sub-Counties within Kirinyaga County, jointly conspired to defraud GIBSON KAMAU THUKU of land parcel KIINE/GACHARO/507.
b. Count II: Forgery contrary to section 345 as read with section 349 of the Penal Code. The particulars were that on the 15th day of September 2015 at Ndia East division of Kirinyaga West Sub-County within Kirinyaga County jointly with intent to defraud, forged application for consent of and control board purporting it to be a genuine application for consent of Land Control Board signed by Gibson Kamau Thuku.
c. Count III: Uttering a False Document contrary to section 353 of the Penal Code. The particulars were that on the 10th day of December 2015 at Kirinyaga lands office within Kirinyaga county jointly knowingly and fraudulently uttered a forged application for consent of Land Control Board to the Land Registrar purporting it to be a genuine document signed by Gibson Kamau Thuku.
d. Count IV: Forgery contrary to section 345 as read with section 349 of the Penal Code. The particulars were that on the 17th day of September 2015 at Ndia Land Control Board in Kirinyaga West Sub-County within Kirinyaga County with intent to defraud, jointly forged a letter of consent purporting it to be a genuine document issued to Gibson Kamau Thuku.
e. Count V: Uttering a false document contrary to section 353 of the Penal Code. The particulars were that on the 10th day of December 2015 at Kirinyaga County lands office in Kerugoya town of Kirinyaga Central in Kirinyaga County jointly uttered a forged letter of consent purporting it to be a genuine document issued to Gibson Kamau Thuku.
f. Count VI: Forgery contrary to section 345 as read with section 349 of the Penal Code. The particulars were that on the 10th day of December 2015 at unknown place in Kerugoya town within Kirinyaga Central Sub-County within Kirinyaga County with intent to defraud jointly forged a Mutation Form No. 04175348 purporting it to be genuine document signed by Gibson Kamau Thuku for sub-division of land parcel LR. KIINE/GACHARO/507.
g. Count VII: Uttering a false document contrary to section 353 of the Penal Code. The particulars were that on the 10th day of December 2015 at Kirinyaga County lands office in Kerugoya town of Kirinyaga Central in Kirinyaga County with intent to defraud jointly uttered a forged Mutation Form No. 04175348 to the land registrar purporting it to be a genuine mutation form signed by Gibson Kamau Thuku.
h. Count VIII: Personation contrary to section 382 of the Penal Code. The particulars were that on the 10th day of December 2015 at lands office in Kerugoya town within Kirinyaga Central Sub-County within Kirinyaga County with intent to defraud falsely jointly represented yourselves to be Gibson Kamau Thuku.
i. Count IX: Fraudulent procurement of a land registration contrary to section 103(i)(c)(1) of the Land Registration Act (Cap. 300) Laws of Kenya. The particulars were that on the 10th day of December 2018 at land registry Kerugoya town within Kirinyaga Central Sub-County jointly fraudulently procured the registration of land parcel LR KIINE/GACHARO/507.
2. He was convicted on counts I, II, V, VI, VII and VIII and acquitted on the rest of the counts. He was sentenced as follows:
a. Count I: Fined KShs 300,000/= in default to serve 2 years imprisonment.
b. Count II: Fined KShs 100,000/= in default to serve 2 years imprisonment.
c. Count V: Fined KShs 100,000/= in default to serve 2 years imprisonment.
d. Count VI: Fined KShs 100,000/= in default to serve 2 years imprisonment.
e. Count VII: Fined KShs 100,000/= in default to serve 1-year imprisonment.
f. Count VIII: Fined KShs 50,000/= in default to serve 1-year imprisonment.
3. The sentences were ordered to run consecutively and so the cumulative fine was therefore KShs 750,000/= and the default term 10 years imprisonment.
4. The appellant now appeals to this court against sentence only through a petition dated 9/7/2024. His grounds of appeal are as follows:
a. The learned Magistrate erred in law and in fact by failing to consider the principle of totality which is paramount in sentencing, especially where multiple sentences are imposed.
b. The learned trial Magistrate erred in law and in fact when she handed down sentences that are to run consecutively, resulting in a compounded period of imprisonment and heavy fine, which the appellant submits is unduly harsh and not in the interest of justice.
c. The learned trial Magistrate erred in law and in fact by not adequately considering the appellant was a first-time offender, remorseful and young family man thus she awarded a harsh and excessive sentence to the appellant.
d. The learned trial Magistrate failed to consider that the imposition of consecutive sentences in this case results in manifestly excessive punishment that fails to take into account the appellant’s potential for rehabilitation.
e. The learned trial Magistrate erred in law by failing to follow or give due regard to the legal and judicial precedent that favours concurrent sentences in cases where the offences arise out of the same transaction or series of transactions forming part of a cohesive and continuous criminal narrative.
5. The appellant seeks that the appeal be allowed, the decision of the trial court to impose consecutive sentences be set aside and substituted with an order that the sentences run concurrently.
6. This appeal was argued by way of written submissions filed by both the appellant and the respondent.
7. Considered as a whole, the grounds of appeal are basically on one issue, that the learned trial magistrate erred when she ordered the sentences against the appellant to run consecutively instead of concurrently.
8. The appellant’s submissions in support of his appeal are that the offences arose out of the same series of transactions which formed a continuous criminal narrative and therefore the sentences ought to have been directed to run concurrently rather than consecutively. The totality of the sentences was therefore harsh and excessive thereby failing the test of totality by handing down a punishment that was not proportionate and excessively harsh.
9. His further submissions are that the learned trial magistrate failed to consider that he was a first-time offender, a young man who was very remorseful.
10. Learned counsel for the respondent submits that the issue for determination is whether the consecutive sentences passed are legally tenable and justified. He submits that the order for the sentences to run consecutively is justified as the offences are all separate and distinct from one another. Moreover, the sentences passed were for payment of a fine and the default terms cannot be ordered to run concurrently but consecutively.
11. Learned counsel has cited various statutory provisions relating to sentence as well as decided cases on sentencing to support his submissions.
12. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“…it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
13. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof as well as the submissions by learned counsel for the respondent. I have also carefully examined and re-evaluated the evidence tendered before the trial court and the trial court’s record on sentencing. The issue for determination is whether or not the learned trial magistrate proceeded correctly in ordering the sentences against the appellant to run consecutively.
14. Section 26(3) of the Penal Code provides that if imprisonment is provided as a penalty for punishment and a fine is not specified, a fine may be imposed on a person convicted of the offence, instead of or in addition to imprisonment unless the sentence of imprisonment is expressed as a minimum.
15. In the present case, the punishment for each of the offences under sections 317 (conspiracy to defraud), 349 (forgery), 353 (uttering a false document) and 382 (personation) of the Penal Code for which the appellant was convicted provide for imprisonment as the penalty. The sentence is not expressed as a minimum in any of the sections and in that case the learned trial magistrate acting under section 26(3) of the PC was correct to impose a fine as a sentence with a default term of imprisonment for each of them.
16. It is the appellant’s submission that the trial court’s order that the default sentences to run consecutively was erroneous and the same should be made to run concurrently.
17. It is important to set out the law on fine as a punishment in order to appreciate its import in view of the appeal herein. Section 28 of the PC provides for the sentence of fine as follows:
1. Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply—
a. where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;
b. in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court;
c. in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion—
i. direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also
ii. issue a warrant for the levy of the amount on the immovable and movable property of the offender by distress and sale under warrant:
Provided that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue a distress warrant unless for special reasons to be recorded in writing it considers it necessary to do so.
2. In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Repealed) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
Amount Maximum period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 2,500 1 month
Exceeding Sh. 2,500 but not exceeding Sh. 15,000 3 months
Exceeding Sh. 15,000 but not exceeding Sh. 50,000 6 months
Exceeding Sh. 50,000 12 months
3. The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
18. The learned trial magistrate proceeded correctly under the said section of the law with respect to the imposition of the fine which was at the court’s discretion as provided for under section 28(1)(a), (b) and (c)(i). I will come back to the manner in which she proceeded under sub-section 2 later.
19. Coming to the issue of the default sentences running consecutively, the starting point is section 14 of the Criminal Procedure Code (Cap. 75) Laws of Kenya which provides that:
“(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.”
20. The Court of Appeal in the case of George Morara Bosire v Republic [2020] KECA 41 (KLR) said that a reading of section 14(1) of the Criminal Procedure Code seems to suggest that the default position for distinct offences is consecutive sentences even though the discretion to order a consecutive or concurrent term still lies with the trial court.
21. Section 37 of the PC which provides for cumulative sentences as follows:
“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.”
22. The learned trial magistrate therefore proceeded correctly as stated under the proviso to this section of the law. Here the law is clear that sentences of imprisonment in default of a payment of a fine have to run consecutively. The default sentences of imprisonment will therefore remain consecutive as directed by the learned trial magistrate.
23. The Court of Appeal addressed this issue in the case of George Morara Bosire v Republic [2020] KECA 41 (KLR). In that case, the appellant was convicted on his own plea of guilty on six counts of stealing contrary to section 268 as read with section 275 of the Penal Code. He had lured and played a trick on six college students to carry their laptops and accompany him in his mini-bus to a place he had promised to offer them internship. On reaching the supposed destination, he asked them to leave the laptops in the bus, alight and enter a building to which they all unsuspectingly obliged after which he collected all the laptops and left with them. He was eventually arrested and charged for theft of the six laptops which were never recovered. Upon conviction, he was sentenced to a fine of KShs. 50,000 for each count thus totalling KShs. 300,000. In default he was to serve 3 years imprisonment for each count. And the sentences were to run consecutively. His application for revision of sentence to the High Court, asking for a non-custodial sentence was dismissed. On a further appeal to the Court of Appeal, his main grounds were that the sentences ought to have been ordered to run concurrently and not consecutively. In considering the appeal, the Court of Appeal dismissed the respondent’s argument that the same was on severity of sentence and found that it was on the “propriety and legality of the consecutive term sentences imposed” in the circumstances of this case. (Emphasis mine).
24. The Court of Appeal then dealt extensively on the issue of when a concurrent or consecutive term of imprisonment should ensue in the following manner:
“Regarding the propriety of the consecutive jail sentences imposed on the appellant, it is enough for us to say that this Court has spoken quite clearly and consistently on what a court should consider before imposing consecutive or concurrent jail terms. In BMW vs. REPUBLIC [2014] eKRL, … this Court pronounced 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 of transaction, a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the courts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.”
We agree with that proposition which was also accepted and applied in WILLIAM KIMANI NDICHU vs. REPUBLIC [2015] eKLR which also had addressed the pivotal differentiating issue as follows;
“The former Court of Appeal had defined the phrase ‘same transaction’ in REX vs. SAIID NSUBAGA c/o JUMA & ANOR [1941] 8 EACA 81 and revisited it again in NATHANI vs. REPUBLIC [1965] EA 777, where the court said that the proper construction of the phrase ‘same transaction’ is that;
‘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 effort as to constitute one transaction, that the offences constituted by these series of acts are committed in the course of the same transaction.’”
25. The Court of Appeal then found that the theft of the six laptops was so proximate in time, impelled by the same streak of criminality and criminal intent, and occurred in one act of deceit and driving off, as to doubtless constitute a single transaction. This called for an order that the sentences run concurrently. It set aside the order of the High Court and the trial court that the sentences in the six counts to run consecutively and substituted therefor an order that the same run concurrently from the date the appellant was first sentenced. It further found the default term making a total of 18 years’ jail term to be “manifestly excessive and palpably prejudicial to the appellant, calling into question its legality and inviting its interference.”
26. In the present case, I note that the default sentences imposed by the learned trial magistrate do not accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya as the learned trial magistrate imposed default sentences beyond what is prescribed by the law. The maximum default term of imprisonment provided for under that section is 12 months imprisonment.
27. Consequently, the default sentences imposed by the learned trial magistrate are set aside and substituted with the following:
a. Count I: Fined KShs 300,000/= in default to serve 12 months imprisonment.
b. Count II: Fined KShs 100,000/= in default to serve 9 months imprisonment.
c. Count V: Fined KShs 100,000/= in default to serve 9 months imprisonment.
d. Count VI: Fined KShs 100,000/= in default to serve 9 months imprisonment.
e. Count VII: Fined KShs 100,000/= in default to serve 9 months imprisonment.
f. Count VIII: Fined KShs 50,000/= in default to serve 6 months imprisonment.
28. Consequently, the cumulative fines remain KShs 750,000/= but the default term reduced to 54 months or four and half-years imprisonment and the sentences to run consecutively.
29. Other than the correction on the default terms, the appeal is without merit and the same is dismissed.
30. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 29th day of April 2025 in the presence of:
The appellant in person in court.
Vallerie h/b for Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E023 OF 2024
PATRICK NJOGU KIRAGU…………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal against the sentence of Hon. Charity C. Kipkorir, PM in Kerugoya Magistrates Court Criminal Case No. 994 of 2020 delivered on 31/5/2023)
J U D G M E N T
1. Patrick Njogu Kiragu, the appellant herein was convicted in six out of the nine counts he was charged with and sentenced accordingly. The charges were as follows:
a. Count I: Conspiracy to defraud contrary to section 317 of the Penal Code (Cap. 63) Laws of Kenya. The particulars were that on diverse dates between 17th September, 2015 and 10th December 2015 at unknown various places in Kirinyaga Central and Kirinyaga West Sub-Counties within Kirinyaga County, jointly conspired to defraud GIBSON KAMAU THUKU of land parcel KIINE/GACHARO/507.
b. Count II: Forgery contrary to section 345 as read with section 349 of the Penal Code. The particulars were that on the 15th day of September 2015 at Ndia East division of Kirinyaga West Sub-County within Kirinyaga County jointly with intent to defraud, forged application for consent of and control board purporting it to be a genuine application for consent of Land Control Board signed by Gibson Kamau Thuku.
c. Count III: Uttering a False Document contrary to section 353 of the Penal Code. The particulars were that on the 10th day of December 2015 at Kirinyaga lands office within Kirinyaga county jointly knowingly and fraudulently uttered a forged application for consent of Land Control Board to the Land Registrar purporting it to be a genuine document signed by Gibson Kamau Thuku.
d. Count IV: Forgery contrary to section 345 as read with section 349 of the Penal Code. The particulars were that on the 17th day of September 2015 at Ndia Land Control Board in Kirinyaga West Sub-County within Kirinyaga County with intent to defraud, jointly forged a letter of consent purporting it to be a genuine document issued to Gibson Kamau Thuku.
e. Count V: Uttering a false document contrary to section 353 of the Penal Code. The particulars were that on the 10th day of December 2015 at Kirinyaga County lands office in Kerugoya town of Kirinyaga Central in Kirinyaga County jointly uttered a forged letter of consent purporting it to be a genuine document issued to Gibson Kamau Thuku.
f. Count VI: Forgery contrary to section 345 as read with section 349 of the Penal Code. The particulars were that on the 10th day of December 2015 at unknown place in Kerugoya town within Kirinyaga Central Sub-County within Kirinyaga County with intent to defraud jointly forged a Mutation Form No. 04175348 purporting it to be genuine document signed by Gibson Kamau Thuku for sub-division of land parcel LR. KIINE/GACHARO/507.
g. Count VII: Uttering a false document contrary to section 353 of the Penal Code. The particulars were that on the 10th day of December 2015 at Kirinyaga County lands office in Kerugoya town of Kirinyaga Central in Kirinyaga County with intent to defraud jointly uttered a forged Mutation Form No. 04175348 to the land registrar purporting it to be a genuine mutation form signed by Gibson Kamau Thuku.
h. Count VIII: Personation contrary to section 382 of the Penal Code. The particulars were that on the 10th day of December 2015 at lands office in Kerugoya town within Kirinyaga Central Sub-County within Kirinyaga County with intent to defraud falsely jointly represented yourselves to be Gibson Kamau Thuku.
i. Count IX: Fraudulent procurement of a land registration contrary to section 103(i)(c)(1) of the Land Registration Act (Cap. 300) Laws of Kenya. The particulars were that on the 10th day of December 2018 at land registry Kerugoya town within Kirinyaga Central Sub-County jointly fraudulently procured the registration of land parcel LR KIINE/GACHARO/507.
2. He was convicted on counts I, II, V, VI, VII and VIII and acquitted on the rest of the counts. He was sentenced as follows:
a. Count I: Fined KShs 300,000/= in default to serve 2 years imprisonment.
b. Count II: Fined KShs 100,000/= in default to serve 2 years imprisonment.
c. Count V: Fined KShs 100,000/= in default to serve 2 years imprisonment.
d. Count VI: Fined KShs 100,000/= in default to serve 2 years imprisonment.
e. Count VII: Fined KShs 100,000/= in default to serve 1-year imprisonment.
f. Count VIII: Fined KShs 50,000/= in default to serve 1-year imprisonment.
3. The sentences were ordered to run consecutively and so the cumulative fine was therefore KShs 750,000/= and the default term 10 years imprisonment.
4. The appellant now appeals to this court against sentence only through a petition dated 9/7/2024. His grounds of appeal are as follows:
a. The learned Magistrate erred in law and in fact by failing to consider the principle of totality which is paramount in sentencing, especially where multiple sentences are imposed.
b. The learned trial Magistrate erred in law and in fact when she handed down sentences that are to run consecutively, resulting in a compounded period of imprisonment and heavy fine, which the appellant submits is unduly harsh and not in the interest of justice.
c. The learned trial Magistrate erred in law and in fact by not adequately considering the appellant was a first-time offender, remorseful and young family man thus she awarded a harsh and excessive sentence to the appellant.
d. The learned trial Magistrate failed to consider that the imposition of consecutive sentences in this case results in manifestly excessive punishment that fails to take into account the appellant’s potential for rehabilitation.
e. The learned trial Magistrate erred in law by failing to follow or give due regard to the legal and judicial precedent that favours concurrent sentences in cases where the offences arise out of the same transaction or series of transactions forming part of a cohesive and continuous criminal narrative.
5. The appellant seeks that the appeal be allowed, the decision of the trial court to impose consecutive sentences be set aside and substituted with an order that the sentences run concurrently.
6. This appeal was argued by way of written submissions filed by both the appellant and the respondent.
7. Considered as a whole, the grounds of appeal are basically on one issue, that the learned trial magistrate erred when she ordered the sentences against the appellant to run consecutively instead of concurrently.
8. The appellant’s submissions in support of his appeal are that the offences arose out of the same series of transactions which formed a continuous criminal narrative and therefore the sentences ought to have been directed to run concurrently rather than consecutively. The totality of the sentences was therefore harsh and excessive thereby failing the test of totality by handing down a punishment that was not proportionate and excessively harsh.
9. His further submissions are that the learned trial magistrate failed to consider that he was a first-time offender, a young man who was very remorseful.
10. Learned counsel for the respondent submits that the issue for determination is whether the consecutive sentences passed are legally tenable and justified. He submits that the order for the sentences to run consecutively is justified as the offences are all separate and distinct from one another. Moreover, the sentences passed were for payment of a fine and the default terms cannot be ordered to run concurrently but consecutively.
11. Learned counsel has cited various statutory provisions relating to sentence as well as decided cases on sentencing to support his submissions.
12. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“…it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
13. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof as well as the submissions by learned counsel for the respondent. I have also carefully examined and re-evaluated the evidence tendered before the trial court and the trial court’s record on sentencing. The issue for determination is whether or not the learned trial magistrate proceeded correctly in ordering the sentences against the appellant to run consecutively.
14. Section 26(3) of the Penal Code provides that if imprisonment is provided as a penalty for punishment and a fine is not specified, a fine may be imposed on a person convicted of the offence, instead of or in addition to imprisonment unless the sentence of imprisonment is expressed as a minimum.
15. In the present case, the punishment for each of the offences under sections 317 (conspiracy to defraud), 349 (forgery), 353 (uttering a false document) and 382 (personation) of the Penal Code for which the appellant was convicted provide for imprisonment as the penalty. The sentence is not expressed as a minimum in any of the sections and in that case the learned trial magistrate acting under section 26(3) of the PC was correct to impose a fine as a sentence with a default term of imprisonment for each of them.
16. It is the appellant’s submission that the trial court’s order that the default sentences to run consecutively was erroneous and the same should be made to run concurrently.
17. It is important to set out the law on fine as a punishment in order to appreciate its import in view of the appeal herein. Section 28 of the PC provides for the sentence of fine as follows:
1. Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply—
a. where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;
b. in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court;
c. in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion—
i. direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also
ii. issue a warrant for the levy of the amount on the immovable and movable property of the offender by distress and sale under warrant:
Provided that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue a distress warrant unless for special reasons to be recorded in writing it considers it necessary to do so.
2. In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Repealed) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
Amount Maximum period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 2,500 1 month
Exceeding Sh. 2,500 but not exceeding Sh. 15,000 3 months
Exceeding Sh. 15,000 but not exceeding Sh. 50,000 6 months
Exceeding Sh. 50,000 12 months
3. The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
18. The learned trial magistrate proceeded correctly under the said section of the law with respect to the imposition of the fine which was at the court’s discretion as provided for under section 28(1)(a), (b) and (c)(i). I will come back to the manner in which she proceeded under sub-section 2 later.
19. Coming to the issue of the default sentences running consecutively, the starting point is section 14 of the Criminal Procedure Code (Cap. 75) Laws of Kenya which provides that:
“(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.”
20. The Court of Appeal in the case of George Morara Bosire v Republic [2020] KECA 41 (KLR) said that a reading of section 14(1) of the Criminal Procedure Code seems to suggest that the default position for distinct offences is consecutive sentences even though the discretion to order a consecutive or concurrent term still lies with the trial court.
21. Section 37 of the PC which provides for cumulative sentences as follows:
“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.”
22. The learned trial magistrate therefore proceeded correctly as stated under the proviso to this section of the law. Here the law is clear that sentences of imprisonment in default of a payment of a fine have to run consecutively. The default sentences of imprisonment will therefore remain consecutive as directed by the learned trial magistrate.
23. The Court of Appeal addressed this issue in the case of George Morara Bosire v Republic [2020] KECA 41 (KLR). In that case, the appellant was convicted on his own plea of guilty on six counts of stealing contrary to section 268 as read with section 275 of the Penal Code. He had lured and played a trick on six college students to carry their laptops and accompany him in his mini-bus to a place he had promised to offer them internship. On reaching the supposed destination, he asked them to leave the laptops in the bus, alight and enter a building to which they all unsuspectingly obliged after which he collected all the laptops and left with them. He was eventually arrested and charged for theft of the six laptops which were never recovered. Upon conviction, he was sentenced to a fine of KShs. 50,000 for each count thus totalling KShs. 300,000. In default he was to serve 3 years imprisonment for each count. And the sentences were to run consecutively. His application for revision of sentence to the High Court, asking for a non-custodial sentence was dismissed. On a further appeal to the Court of Appeal, his main grounds were that the sentences ought to have been ordered to run concurrently and not consecutively. In considering the appeal, the Court of Appeal dismissed the respondent’s argument that the same was on severity of sentence and found that it was on the “propriety and legality of the consecutive term sentences imposed” in the circumstances of this case. (Emphasis mine).
24. The Court of Appeal then dealt extensively on the issue of when a concurrent or consecutive term of imprisonment should ensue in the following manner:
“Regarding the propriety of the consecutive jail sentences imposed on the appellant, it is enough for us to say that this Court has spoken quite clearly and consistently on what a court should consider before imposing consecutive or concurrent jail terms. In BMW vs. REPUBLIC [2014] eKRL, … this Court pronounced 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 of transaction, a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the courts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.”
We agree with that proposition which was also accepted and applied in WILLIAM KIMANI NDICHU vs. REPUBLIC [2015] eKLR which also had addressed the pivotal differentiating issue as follows;
“The former Court of Appeal had defined the phrase ‘same transaction’ in REX vs. SAIID NSUBAGA c/o JUMA & ANOR [1941] 8 EACA 81 and revisited it again in NATHANI vs. REPUBLIC [1965] EA 777, where the court said that the proper construction of the phrase ‘same transaction’ is that;
‘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 effort as to constitute one transaction, that the offences constituted by these series of acts are committed in the course of the same transaction.’”
25. The Court of Appeal then found that the theft of the six laptops was so proximate in time, impelled by the same streak of criminality and criminal intent, and occurred in one act of deceit and driving off, as to doubtless constitute a single transaction. This called for an order that the sentences run concurrently. It set aside the order of the High Court and the trial court that the sentences in the six counts to run consecutively and substituted therefor an order that the same run concurrently from the date the appellant was first sentenced. It further found the default term making a total of 18 years’ jail term to be “manifestly excessive and palpably prejudicial to the appellant, calling into question its legality and inviting its interference.”
26. In the present case, I note that the default sentences imposed by the learned trial magistrate do not accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya as the learned trial magistrate imposed default sentences beyond what is prescribed by the law. The maximum default term of imprisonment provided for under that section is 12 months imprisonment.
27. Consequently, the default sentences imposed by the learned trial magistrate are set aside and substituted with the following:
a. Count I: Fined KShs 300,000/= in default to serve 12 months imprisonment.
b. Count II: Fined KShs 100,000/= in default to serve 9 months imprisonment.
c. Count V: Fined KShs 100,000/= in default to serve 9 months imprisonment.
d. Count VI: Fined KShs 100,000/= in default to serve 9 months imprisonment.
e. Count VII: Fined KShs 100,000/= in default to serve 9 months imprisonment.
f. Count VIII: Fined KShs 50,000/= in default to serve 6 months imprisonment.
28. Consequently, the cumulative fines remain KShs 750,000/= but the default term reduced to 54 months or four and half-years imprisonment and the sentences to run consecutively.
29. Other than the correction on the default terms, the appeal is without merit and the same is dismissed.
30. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 29th day of April 2025 in the presence of:
The appellant in person in court.
Vallerie h/b for Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE