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|Case Number:||Criminal Appeal 72 of 1995|
|Parties:||Clement Waruru Nyahuro v Republic|
|Date Delivered:||28 Sep 1995|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Johnson Evan Gicheru, Amrittal Bhagwanji Shah, Philip Kiptoo Tunoi|
|Citation:||Clement Waruru Nyahuro v Republic  eKLR|
|Case History:||(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr. D. M. Rimita) dated 6th June, 1994 IN H. C. CR. A. NOS. 31 & 32 OF 1994)|
|Parties Profile:||Individual v Individual|
|History Docket No:||H. C. CR. A. NOS. 31 & 32 OF 1994)|
|History Judges:||David Maitai Rimita|
Criminal law - burglary and stealing - accused persons convicted on a plea of guilty and sentenced to imprisonment for three years and 12 strokes of corporal punishment ( the cane ) - accused arraigned on a similar charge, convicted on his own plea of guilty and sentenced to imprisonment for 2 years and a 8 strokes - sentence of imprisonment in the first case ordered to run consecutively with the sentence in the second case - appellant's first appeal summarily rejected by the High Court - second appeal - summary rejection of the appeal by the High Court improper as the appeal was not confined to the two matters under section 352(2) of the Criminal Procedure Code - second appeal under section 3(2) of the Appellate Jurisdiction Act - whether the appellant's pleas of guilty were unequivocal - Penal Code sections 304(2), 279(b)
Sentencing - concurrent and consecutive sentences - multiple offences - where a person commits more than one offence at the same time in the same transaction - accused person committing offences of burglary and stealing in a space of one month and within the same locality - accused person convicted on separate charges involving more than one count - whether it would be proper to order the sentences to run consecutively in such a case.
|Case Outcome:||No. of strokes reduced to 4|
|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
Criminal Appeal 72 of 1995
CLEMENT WARURU NYAHURO …………................………………APPELLANT
(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr. D. M. Rimita) dated 6th June, 1994
H. C. CR. A. NOS. 31 & 32 OF 1994)
JUDGMENT OF THE COURT
These two appeals have been consolidated for convenient disposal.
The appellant was convicted on 31st January, 1994 by the Nakuru Senior Resident Magistrate on his own plea of guilty on the offence of burglary and stealing contrary to secitons 304(2) and 279(b) of the Penal Code and sentenced to a concurrent 3 years' imprisonment on each limb and 12 strokes of the cane. This was in Criminal Case No. 241 of 1994 (Criminal Appeal No. 2 of 1995 herein).
It would appear that so soon thereafter the appellant was again arraigned before the same magistrate on a similar charge of burglary and stealing to which he pleaded guilty and was accordingly sentenced to 2 years' imprisonment on each limb. The jail terms were ordered to be served concurrently. The appellant was also ordered to receive 8 strokes of the cane. This latter case was Criminal Case No. 242 of 1994 (Criminal Appeal No. 72 of 1995 herein). The sentences imposed in the second case were ordered to be served consecutively with those already imposed in Criminal Case No. 241 of 1994. His appeal to the High Court of Kenya at Nakuru were summarily rejected under section 352(2) of the Criminal Procedure Code. Against that summary rejection the appellant has preferred these appeals to this court.
It is clear from perusal of the grounds of appeal before the High Court that they were not confined to the two matters under section 352(2) of the Criminal procedure Code under which an appeal may be summarily rejected. In our view, the High Court in its appellate jurisdiction erred in dealings with the appellant's appeals by rejecting his appeals to that court.
Under section 3(2) of the Appellate jurisdiction Act (Cap 9 of the Laws of Kenya) we will dispose of these appeals once and for all.
As far as the pleas are concerned we are satisfied that they were unequivocal and must stand. We shall not therefore interfere with the convictions.
The practice where a person commits more than one offence at the same time in the same transaction is, save in very exceptional circumstances, to impose concurrent sentences. See REX V SAWEDI MUKASA s/o ABDULLA ALIGWAISA, 13 E. A. C. A. 97. The offences on which the appellant was convicted were a series of offences committed within a space of a month or so and within the same locality. It was therefore preferable to impose concurrent sentences.
We direct that the prison terms shall be served concurrently and the number of strokes are reduced to one on each limb so that the appellant will now serve a total sentence of 3 years' imprisonment and receive 4 strokes of the cane.
Dated and delivered at Nakuru this 28th day of September, 1995
J. E. GICHERU
JUDGE OF APPEAL
P. K. TUNOI
JUDGE OF APPEAL
A. B. SHAH
JUDGE OF APPEAL
I certify that this a true copy of the original.