1. Peter Kuria Kamakia, the Applicant was arrested on 23 rd July, 2024 and charged in Nyahururu CM’s Criminal Case No. E848/2024 with the offence of Robbery contrary to Section 295 of the Penal Code. Particulars of the offence were that on the 20 th day of July, 2024 at around 0300hrs in Gichaka Location, Gathanji Sub-County, Nyandarua County, and others not before court robed Margaret Wanjiru Kshs.17,000/- from M-pesa Account No. 0724052482 by threatening the Complainant.
2. In the alternative he faced the charge of Handling Stolen Property contrary to Section 323 of the Penal Code. Particulars being that on the 23 rd day of July, 2024, at around 1000hrs in Charagita Location, Gathanji Sub-County in Nyandarua County the Accused was found in possession of Kshs.92,000/- in M-pesa Account No. 0796702897 knowing or having reason to believe to be stolen.
3. Upon being arraigned on 23 rd July, he denied the charges whereby he was released on a cash bail of Kshs.50,000/- and the matter set down for hearing. On the 9 th October, 2024, he did not turn up for trial hence a warrant of arrest was issued. On 17 th October, 2024, the cash bail was forfeited.
4. On 26 th October, 2024, he was arraigned in Nyahururu CM’s Cr. Case No. E1102/2024, jointly with another on allegations of Having Stolen Stock an offence that was contrary to Section 278 of the Penal Code . The particulars of the offence were that on the 26 th day of October, 2024, at Charagita village in Gathanji Sub-County within Nyandarua County, jointly with another stole one cow valued Kshs.80,000/-, the property of John Kanyuki.
5. In the alternative he faced the charge of Handling Stolen Goods contrary to Section 322(2) of the Penal Code. Particulars being that on the 26 th day of October, 2024, in Mirangine Sub-County within Nyandarua County, otherwise than in the cause of stealing, dishonestly/or knowingly having reasons to believe, retained a stolen cow, property of John Kanyuki.
6. Both cases were heard that resulted into conviction. In E843/24 he was sentenced to serve two (2) years imprisonment, while in E1102 of 2024 he was sentenced to pay a fine of Kshs.20,000/- and in default he was required to serve eighteen (18) months imprisonment.
7. Through an undated application filed herein, he seeks an order that the sentences do run concurrently. The application is supported by an affidavit deposed by the Applicant where he avers that he seeks revision of the sentence pursuant to the Revised Sentencing Policy Guidelines [2023] which allows the convicts to apply for sentence review and in that regard the court may order the two sentences to run concurrently. And, that he expresses remorse.
8. During hearing of the application, the Applicant submitted orally while Respondent through Learned Counsel Ms. Mumbe opted to leave it to the court to exercise its discretion.
9. I have considered the application herein. To review a case determined by the subordinate court, this court must be guided by Section 362 of the Criminal Procedure Code (CPC) which 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.
10. The court is seized of jurisdiction to review cases by subordinate courts subject to whether there was procedural error, an irregularity, impropriety or illegality. In the instant matter the Applicant committed the offences and was charged in separate cases. The discretion to impose concurrent or consecutive sentences lies with the court. (See the Sentencing Policy Guidelines, 7.14).
11. Statute also provides for the discretion. Section 14 of the Criminal Procedure Code 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.
(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.
12. In Peter Mbugua Kabui v Republic [2016] eKLR the Court of Appeal 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.”
13. This is a matter where the Applicant was charged and released on bond. Then while his case was ongoing he absconded and proceeded to commit a different offence, which was distinct from the one he was facing at the time hence these were totally different offences.
14. A superior court can only interfere with the sentence meted by the lower court if circumstances demand. These would include a situation where the jurisdiction is exceeded, it must be disproportionate with the offence committed.
15. As afore stated, the cases were separate hence independent which cannot be consolidated and sentences ordered to run concurrently.
16. That be as it may, having perused the record of the court in E1102/2024 , there was an illegality in the sentence. The court in exercise of its discretion opted to impose a fine, namely Kshs.20,000/- and in default the Applicant was required to serve eighteen (18) months imprisonment. Section 28 of the Penal Code provides thus;
(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 (Cap. 91) 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
17. The default sentence should have been six (6) months imprisonment. Therefore, the default sentence was illegal and erroneous which obligates this court to intervene.
18. From the foregoing, I find the application for review of the sentence to run concurrently unmeritorious, the same is accordingly dismissed.
But, in respect of the illegal sentence, I call it to this court, quash and set aside then substantiate it with the fine of Kshs.20,000/- and in default six (6) months imprisonment which shall be effective from the date of sentencing.
19. The application succeeds to that extent.
20. It is so ordered.
HCCR REV. E056 OF 2025 (JUDG.) Page 2 of 2
2. In the alternative he faced the charge of Handling Stolen Property contrary to Section 323 of the Penal Code. Particulars being that on the 23 rd day of July, 2024, at around 1000hrs in Charagita Location, Gathanji Sub-County in Nyandarua County the Accused was found in possession of Kshs.92,000/- in M-pesa Account No. 0796702897 knowing or having reason to believe to be stolen.
3. Upon being arraigned on 23 rd July, he denied the charges whereby he was released on a cash bail of Kshs.50,000/- and the matter set down for hearing. On the 9 th October, 2024, he did not turn up for trial hence a warrant of arrest was issued. On 17 th October, 2024, the cash bail was forfeited.
4. On 26 th October, 2024, he was arraigned in Nyahururu CM’s Cr. Case No. E1102/2024, jointly with another on allegations of Having Stolen Stock an offence that was contrary to Section 278 of the Penal Code . The particulars of the offence were that on the 26 th day of October, 2024, at Charagita village in Gathanji Sub-County within Nyandarua County, jointly with another stole one cow valued Kshs.80,000/-, the property of John Kanyuki.
5. In the alternative he faced the charge of Handling Stolen Goods contrary to Section 322(2) of the Penal Code. Particulars being that on the 26 th day of October, 2024, in Mirangine Sub-County within Nyandarua County, otherwise than in the cause of stealing, dishonestly/or knowingly having reasons to believe, retained a stolen cow, property of John Kanyuki.
6. Both cases were heard that resulted into conviction. In E843/24 he was sentenced to serve two (2) years imprisonment, while in E1102 of 2024 he was sentenced to pay a fine of Kshs.20,000/- and in default he was required to serve eighteen (18) months imprisonment.
7. Through an undated application filed herein, he seeks an order that the sentences do run concurrently. The application is supported by an affidavit deposed by the Applicant where he avers that he seeks revision of the sentence pursuant to the Revised Sentencing Policy Guidelines [2023] which allows the convicts to apply for sentence review and in that regard the court may order the two sentences to run concurrently. And, that he expresses remorse.
8. During hearing of the application, the Applicant submitted orally while Respondent through Learned Counsel Ms. Mumbe opted to leave it to the court to exercise its discretion.
9. I have considered the application herein. To review a case determined by the subordinate court, this court must be guided by Section 362 of the Criminal Procedure Code (CPC) which 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.
10. The court is seized of jurisdiction to review cases by subordinate courts subject to whether there was procedural error, an irregularity, impropriety or illegality. In the instant matter the Applicant committed the offences and was charged in separate cases. The discretion to impose concurrent or consecutive sentences lies with the court. (See the Sentencing Policy Guidelines, 7.14).
11. Statute also provides for the discretion. Section 14 of the Criminal Procedure Code 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.
(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.
12. In Peter Mbugua Kabui v Republic [2016] eKLR the Court of Appeal 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.”
13. This is a matter where the Applicant was charged and released on bond. Then while his case was ongoing he absconded and proceeded to commit a different offence, which was distinct from the one he was facing at the time hence these were totally different offences.
14. A superior court can only interfere with the sentence meted by the lower court if circumstances demand. These would include a situation where the jurisdiction is exceeded, it must be disproportionate with the offence committed.
15. As afore stated, the cases were separate hence independent which cannot be consolidated and sentences ordered to run concurrently.
16. That be as it may, having perused the record of the court in E1102/2024 , there was an illegality in the sentence. The court in exercise of its discretion opted to impose a fine, namely Kshs.20,000/- and in default the Applicant was required to serve eighteen (18) months imprisonment. Section 28 of the Penal Code provides thus;
(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 (Cap. 91) 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
17. The default sentence should have been six (6) months imprisonment. Therefore, the default sentence was illegal and erroneous which obligates this court to intervene.
18. From the foregoing, I find the application for review of the sentence to run concurrently unmeritorious, the same is accordingly dismissed.
But, in respect of the illegal sentence, I call it to this court, quash and set aside then substantiate it with the fine of Kshs.20,000/- and in default six (6) months imprisonment which shall be effective from the date of sentencing.
19. The application succeeds to that extent.
20. It is so ordered.
HCCR REV. E056 OF 2025 (JUDG.) Page 2 of 2