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Court of AppealDismissedCriminal Appeal No. 97 of 2013· [2014] KECA 198 (KLR)

Bmn v Republic

Court of Appeal of Kenya
16 December 2014
2,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that sentences for crimes committed on different dates can legally run one after the other, not together.

What this practically means

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Executive summary

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BMN was convicted by the Principal Magistrate's Court at Siakago on three counts of incest contrary to Section 20(1) of the Sexual Offences Act, committed against his 12-year-old niece on 30th April, 1st May and 6th May 2007. He was sentenced to 10 years' imprisonment on each count, the sentences to run consecutively, for an aggregate of 30 years. His first appeal to the High Court at Embu (Ongundi, J.) failed; conviction and sentence were confirmed. He then lodged a second appeal before the Court of Appeal at Nyeri, appealing only against the sentence, contending that the three 10-year terms should have run concurrently. The State maintained that the offences were committed in separate transactions and that consecutive sentences were lawful. The Court held that a second appeal lies only on points of law, and that the settled practice of imposing concurrent sentences applies only to offences committed at the same time in a single transaction. Because the offences here occurred on diverse dates in distinct criminal transactions, the consecutive sentences were lawful. The Court further held that, for purposes of appeal, aggregate consecutive sentences are deemed a single sentence, rendering the propriety of the 30-year term a question of fact outside its jurisdiction. The 10-year term per count was within the lawful minimum under Section 20(1) of the Sexual Offences Act, and the appellant raised no tenable ground of illegality or excessiveness. The appeal was accordingly dismissed and the decision of the High Court was affirmed.

Key legal issues

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01

Whether consecutive rather than concurrent sentences were lawful for three counts of incest committed on diverse dates

Holding

Consecutive sentences were lawful because the offences occurred in distinct transactions on different dates; the single-transaction concurrency practice did not apply.

Reasoning

The Court reiterated the settled practice that offences committed in one transaction attract concurrent sentences, but held this applicable only where the offences are committed at the same time in a single act. Here the three incest counts arose on 30th April, 1st May and 6th May 2007, i.e. diverse dates and separate transactions, so ordering the 10-year terms consecutively was neither illegal nor erroneous. The statutory limit in Section 14(3) of the Criminal Procedure Code was inapplicable given Section 7(1).

p. 4
02

Whether the Court of Appeal could interfere with the 30-year aggregate sentence on the ground that it was heavy

Holding

No: interference is limited to cases where the sentence is illegal, unlawful, or founded on wrong principles or overlooked material factors, and the appellant advanced no such ground.

Reasoning

The Court applied the settled criteria from Ogolla s/o Owuor and subsequent decisions: interference lies where the sentencing court acted on wrong principles, overlooked material factors, or the sentence is manifestly excessive or illegal. The appellant did not submit that the sentences were harsh, excessive, unlawful or illegal. Each 10-year term was within the lawful minimum under Section 20(1) of the Sexual Offences Act, and the aggregate consecutive sentence is deemed a single sentence whose correctness is a question of fact outside a second appeal.

p. 5

Legal principles established

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  • Where offences are committed in separate criminal transactions on different dates, it is not illegal for a court to order sentences to run consecutively even though the counts are tried together.
  • Where a person commits more than one offence at the same time in the same transaction, sentences ought, save in exceptional circumstances, to run concurrently.
  • An appellate court interferes with sentence only where the trial court acted on wrong principles, overlooked material factors, or the sentence is illegal, unlawful or manifestly excessive; it will not interfere merely because it would have passed a different sentence.
  • For purposes of an appeal, aggregate consecutive sentences imposed at one trial are deemed a single sentence, taking their legality beyond the purview of a second appeal confined to points of law.
  • A second appeal to the Court of Appeal is confined to points of law only.

Court orders

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  1. 1.The appeal against sentence is dismissed; the consecutive 30-year term of imprisonment imposed by the courts below stands
On appeal from
High Court of Kenya at Embu
H.C.CR.A No. 46 of 2011
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, confined to points of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bmn v Republic", Case Analysis (2014). Criminal Appeal No. 97 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/198/eng@2014-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.