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|Case Number:||Criminal Appeal 44 of 1994|
|Parties:||Charles Andika Zacharia v Republic|
|Date Delivered:||22 Sep 1997|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Amrittal Bhagwanji Shah, Abdulrasul Ahmed Lakha, Abdul Majid Cockar|
|Citation:||Charles Andika Zacharia v Republic  eKLR|
|Case History:||(Appeal from conviction & sentence of the High Court of Kenya at Eldoret (Aganyanya J) dated 20th August, 1993 IN H.C.CR.A. NO. 72 OF 1993)|
|Parties Profile:||Individual v Government|
|History Docket No:||.CR.A. NO. 72 OF 1993|
|History Judges:||Daniel Kennedy Sultani Aganyanya|
Criminal Practice and Procedure - appeal against sentence - bar against a second appeal against sentence - accused person convicted and sentenced on two counts of an offence - subsequent conviction on a third count - sentence on third count ordered to run consecutively with the previous sentences - whether the trial court had erred in principle in ordering the sentence to run consecutively - Penal Code section 361
|History County:||Uasin Gishu|
|Case Outcome:||Appeal dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA PEAL AT NAKURU
Criminal Appeal 44 of 1994
CHARLES ANDIKA ZACHARIA………..….APPELLANT
(Appeal from conviction & sentence of the High Court of Kenya at Eldoret (Aganyanya J) dated 20th August, 1993
H.C.CR.A. NO. 72 OF 1993)
JUDGMENT OF THE COURT
This is a second appeal against sentence. Appellant was charged on 3 counts in respect of robberies which were committed on three different dates in the same month that is, 9th, 19th and 25th - 26th January, 1993. He pleaded guilty on 17.2.93 to the last two counts and was sentenced were ordered to run concurrently. On 4.3.93 his trial on the 3rd count was to commence before a different magistrate. Before the trial commenced he pleaded guilty to the 3rd count and was sentenced to 6 years imprisonment with 2 strokes. No second appeal lies to the Court of Appeal against sentence - S.361 (1) (a), unless the sentence has been enhanced by the High Court. However, if the sentence that was imposed is unlawful or based on wrong principles the Court of Appeal will interfere.
In this case the second magistrate was aware of the fact that the appellant had already been sentenced to six years imprisonment with 2 strokes on two counts to run concurrently. He decided not to make the sentence run on the 3rd concurrent to the sentences that had been imposed by the court. He was also aware of all the facts including that the appellant had committed three robberies on three different date in the same month. In these circumstances, if the magistrate thought it fit for the sentence on the 3rd count to run consecutive to the sentences on the first two counts then, in our view, he has not erred in principle. We do not think that there is anything in the circumstances of this appeal that can call for an interference in the sentence by us. The appeal is therefore dismissed.
Dated and delivered at Nairobi this 22nd day of September, 1997.
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.