(Being an appeal from the sentence of Hon G.A Olimo (SRM) in Mombasa Criminal Case number E504 of 2024)
1. The Appellant herein and his co-accused in the lower court were charged with the offence of
i) Buglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code .
The particulars of the offence are that on the night of 14 th and 15 th January 2024 at Kwapawa area in Likoni sub-county within Mombasa County jointly with others not before court broke and entered the dwelling house (shop) of Mary Atieno Abdalla with intent to steal from therein and did steal from therein cash money ksh. 60,000/-, mpesa phone make itel with float of ksh. 20,000/- a sack of 50 kgs rice and other assorted shop goods the property of the said Mary Atieno Abdalla being valued ksh. 110,000/-
ii) House breaking contrary to Section 304 (1) (b) and stealing contrary to Section 279 (b) of the Penal Code .
Particulars of the offence are that on the 27 th February 2024 at about 1730hrs at Vijiweni area Likoni sub-county Mombasa County broke and entered the building used as a dwelling house by Ruth Wachia Lewa and stole ten broiler chickens, wheelbarrow frame and a charcoal jiko valued at ksh. 52,000/- the property of the said Ruth Wachia Lewa.
iii) Malicious damage to property contrary to section 339 (1) as read with Section 339 (a) of the Penal code .
The particulars of the offence are that on the 27 th February 2024 at Vijiweni area in Likoni sub-county within Mombasa county, willfully and unlawfully damaged one CCTV camera valued at ksh. 35,000/- the property of the said Ruth Wachia Lewa.
iv) Buglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code .
The particulars of the offence are that on the night of 5 th and 6 th March 2024 at kwa Mubarak area in Likoni sub-county within Mombasa county jointly with others not before court broke and entered the dwelling house of Idd Haji Hamisi with intent to steal from therein and did steal from therein one laptop make Toshiba, one woofer, 2 speakers a pair of wireless airpods of make oraimo, one electric iron box of make von and cash money ksh. 150,000/- the property of the said Idd Haji Hamisi being valued at ksh. 172,000/-
v) Buglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code .
Particulars of the offence are that on the night 5 th and 6 th March 2024 at Kwa Mubarak area in Likoni sub-county within Mombasa county jointly with others not before court broke and entered the dwelling house of Benedict Akoth Aldo with intent to steal from therein and did steal from therein one TV set 32inch of make vision, one decorder remote, empty gas cylinder 6kg the property of the said Benedict Akoth Aldo being valued at ksh. 30,000/-
vi) Alternative charge of handling stolen goods contrary to Section 322 (1) (2) of the Penal Code.
The particulars of the offence are that on 9 th March 2024 at Jamvi la Wageni area in Likoni sub-county within Mombasa county otherwise than in the course of stealing dishonestly detained one television set make vision 32 inch one electric iron box make von, one woofer make ampex, 2 speakers knowing or having reasons to believe them to be stolen goods.
2. He pleaded guilty to both charges (count one to five) and he was convicted on his own plea of guilty and sentenced to serve 36 months’ imprisonment in each count for counts i, ii, iv and v; and 6 months’ imprisonment for count iii. The sentence to run consecutively.
3. It is also worth noting that, from the record, the appellant is a habitual offender. The appellant had been charged and convicted in.CR no. E1010/2022 rep vs Shaban Kombo offence of burglary and stealing where on 4/10/2022 he was sentenced to serve 18 months’ imprisonment. In Cr no. 272/2016 Rep vs Shaban Kombo Abdulla he was charged with the offence of robbery with violence and the matter was withdrawn under Section 87 (A) of the CPC.
4. The appellant was not satisfied with the trial court’s judgement and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
a) That the learned Magistrate erred in law and fact for not considering that the offence occurred in a single transaction in which the sentences ought to have run concurrently.
b) That the learned trial magistrate failed to consider that the accused ought to have benefited from the least severe prescribed punishment pursuant to Article 50 (2) (p) of the Constitution since he pleaded guilty right from the start of the case.
6. In light of the above, the issues that arise for determination in this matter are: -
i. Whether the sentence meted ought to have run consecutively or concurrently.
Analysis and Determination
7. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the sentence meted ought to have run consecutively or concurrently
8. It is a general rule of practice that where a person is convicted on several counts of the same offences or on different offences the sentencing court has the power to direct the sentences to run consecutively or concurrently. However, it should be noted that consecutive sentences should not be passed for offences arising out of the same transaction.
9. The logic behind this exception is that if consecutive sentences are passed, the total sentence may very often prove to be too great. Where a person is convicted of an offence and the maximum sentence on either count appears to be insufficient for the protection of the public and the treatment of the offender it is proper to pass consecutive sentences.
10. In the case of Sawedi Mukasa s/o Abdulla Aligwaisa (1946) 13 EA CA 97 , the Court of Appeal for Eastern Africa stated that the practice is, where a person commits more than one offence at the same time and in the same transaction, save in exceptional circumstances, to impose concurrent sentences.
11. In Peter Mbugua Kabui vs. Republic (2016) eKLR it was 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. However, if separate and distinct offences are committed in different criminal transactions, 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.”
12. In the instant case, the court finds that the offences in question were committed in the same criminal transactions hence the sentences meted ought to have run concurrently.
13. I therefore allow the appeal to that extent only.
14. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 19 TH DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
1. The Appellant herein and his co-accused in the lower court were charged with the offence of
i) Buglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code .
The particulars of the offence are that on the night of 14 th and 15 th January 2024 at Kwapawa area in Likoni sub-county within Mombasa County jointly with others not before court broke and entered the dwelling house (shop) of Mary Atieno Abdalla with intent to steal from therein and did steal from therein cash money ksh. 60,000/-, mpesa phone make itel with float of ksh. 20,000/- a sack of 50 kgs rice and other assorted shop goods the property of the said Mary Atieno Abdalla being valued ksh. 110,000/-
ii) House breaking contrary to Section 304 (1) (b) and stealing contrary to Section 279 (b) of the Penal Code .
Particulars of the offence are that on the 27 th February 2024 at about 1730hrs at Vijiweni area Likoni sub-county Mombasa County broke and entered the building used as a dwelling house by Ruth Wachia Lewa and stole ten broiler chickens, wheelbarrow frame and a charcoal jiko valued at ksh. 52,000/- the property of the said Ruth Wachia Lewa.
iii) Malicious damage to property contrary to section 339 (1) as read with Section 339 (a) of the Penal code .
The particulars of the offence are that on the 27 th February 2024 at Vijiweni area in Likoni sub-county within Mombasa county, willfully and unlawfully damaged one CCTV camera valued at ksh. 35,000/- the property of the said Ruth Wachia Lewa.
iv) Buglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code .
The particulars of the offence are that on the night of 5 th and 6 th March 2024 at kwa Mubarak area in Likoni sub-county within Mombasa county jointly with others not before court broke and entered the dwelling house of Idd Haji Hamisi with intent to steal from therein and did steal from therein one laptop make Toshiba, one woofer, 2 speakers a pair of wireless airpods of make oraimo, one electric iron box of make von and cash money ksh. 150,000/- the property of the said Idd Haji Hamisi being valued at ksh. 172,000/-
v) Buglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code .
Particulars of the offence are that on the night 5 th and 6 th March 2024 at Kwa Mubarak area in Likoni sub-county within Mombasa county jointly with others not before court broke and entered the dwelling house of Benedict Akoth Aldo with intent to steal from therein and did steal from therein one TV set 32inch of make vision, one decorder remote, empty gas cylinder 6kg the property of the said Benedict Akoth Aldo being valued at ksh. 30,000/-
vi) Alternative charge of handling stolen goods contrary to Section 322 (1) (2) of the Penal Code.
The particulars of the offence are that on 9 th March 2024 at Jamvi la Wageni area in Likoni sub-county within Mombasa county otherwise than in the course of stealing dishonestly detained one television set make vision 32 inch one electric iron box make von, one woofer make ampex, 2 speakers knowing or having reasons to believe them to be stolen goods.
2. He pleaded guilty to both charges (count one to five) and he was convicted on his own plea of guilty and sentenced to serve 36 months’ imprisonment in each count for counts i, ii, iv and v; and 6 months’ imprisonment for count iii. The sentence to run consecutively.
3. It is also worth noting that, from the record, the appellant is a habitual offender. The appellant had been charged and convicted in.CR no. E1010/2022 rep vs Shaban Kombo offence of burglary and stealing where on 4/10/2022 he was sentenced to serve 18 months’ imprisonment. In Cr no. 272/2016 Rep vs Shaban Kombo Abdulla he was charged with the offence of robbery with violence and the matter was withdrawn under Section 87 (A) of the CPC.
4. The appellant was not satisfied with the trial court’s judgement and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
a) That the learned Magistrate erred in law and fact for not considering that the offence occurred in a single transaction in which the sentences ought to have run concurrently.
b) That the learned trial magistrate failed to consider that the accused ought to have benefited from the least severe prescribed punishment pursuant to Article 50 (2) (p) of the Constitution since he pleaded guilty right from the start of the case.
6. In light of the above, the issues that arise for determination in this matter are: -
i. Whether the sentence meted ought to have run consecutively or concurrently.
Analysis and Determination
7. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the sentence meted ought to have run consecutively or concurrently
8. It is a general rule of practice that where a person is convicted on several counts of the same offences or on different offences the sentencing court has the power to direct the sentences to run consecutively or concurrently. However, it should be noted that consecutive sentences should not be passed for offences arising out of the same transaction.
9. The logic behind this exception is that if consecutive sentences are passed, the total sentence may very often prove to be too great. Where a person is convicted of an offence and the maximum sentence on either count appears to be insufficient for the protection of the public and the treatment of the offender it is proper to pass consecutive sentences.
10. In the case of Sawedi Mukasa s/o Abdulla Aligwaisa (1946) 13 EA CA 97 , the Court of Appeal for Eastern Africa stated that the practice is, where a person commits more than one offence at the same time and in the same transaction, save in exceptional circumstances, to impose concurrent sentences.
11. In Peter Mbugua Kabui vs. Republic (2016) eKLR it was 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. However, if separate and distinct offences are committed in different criminal transactions, 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.”
12. In the instant case, the court finds that the offences in question were committed in the same criminal transactions hence the sentences meted ought to have run concurrently.
13. I therefore allow the appeal to that extent only.
14. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 19 TH DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT