Everest Ochieng Were v Republic

Wasilwa Luvisia with intent to steal therein and did steal therein one Television set make Sony, a Radio cassette make Sanyo, two DVD, two bed sheets and cash Kshs 6,000/= all valued at Kshs 35,650/= the property of the said Wasilwa Luvisia.” 2. When the charges were read and explained to the Appellant, he readily admitted committing the offences. 3. The prosecutor (Chief Inspector Osiemo) narrated the facts to the learned Chief Magistrate (Mr B Olao) that on 08/09/2009 the complainant in the first count locked his house and went on leave leaving various goods in his house but upon return on 02/10/2009 he found the house having been broken into and the various goods specified in the particulars of the first count stolen. The goods were worth 50,000/=. On 4th October the complainant was called to the Police Station where he identified his stolen music system and TV which formed part of the stolen goods. 4. As regards the second count, the Complainant locked his house on 18/10/2009 at about 9:00 pm and went on duty but when he returned the following morning he found his house broken into and the goods listed in the second count stolen. He reported the matter to the police. Later he was called to the police station where he identified a radio cassette which formed part of the stolen property. 5. Investigations led to the arrest of the Appellant who had sold the recovered goods and others. He was charged and admitted the offences as already stated. 6. The record shows that the Appellant was sentenced as follows:- “Sentence: Count 1: 1st limb - 18 months 2nd limb - 18 months Count 2: 1st limb - 18 months 2nd limb - 18 months. Consecutive.” 6. Being dissatisfied by the foregoing, the appellant filed an appeal to the High Court, which appeal was dismissed and hence this appeal before us. In a short judgment delivered on 14/06/2010, Ali-Aroni, J dismissed the Appellant’s appeal by stating inter alia:“ Having considered the sentence and plea by the appellant and submissions by learned State Counsel, I agree with the State that the sentence is appropriate. It is neither harsh nor excessive. I see no reason to interfere with the sentence given by learned trial magistrate. In the circumstances, I dismiss the appeal.” 7. When the appeal came up for hearing before us on 15/03/2011, the appellant appeared in person while the State was represented by Mr PM Gumo, (Assistant Deputy Public Prosecutor). The Appellant simply told us that he had admitted the charges and that he had been imprisoned to 72 months. 8. On his part, Mr Gumo submitted that this Court should intervene on the issue of consecutive sentences, as the appellant is under the impression that he was sentenced to 72 months. 9. Our reading of the record clearly indicates that the Appellant was convicted on his own plea of guilt on two counts of burglary and stealing contrary to sections 304(2) and 279(b) of the Penal Code. He was sentenced to eighteen months imprisonment on each limb. That means on the first count he was to serve a total of 18 months in prison. Since the offences in respect of the two counts were committed on different dates, the learned Trial Magistrate ordered the sentences on both counts to run consecutively. That means the Appellant would serve a total of 36 months in prison. It is therefore incorrect for the Appellant to think that he will serve 72 months in prison. 10. In the result, we direct and confirm that the Appellant will serve a prison sentence of 18 months in prison on each count and as the sentences on both counts are to run consecutively the Appellant will https://new.kenyalaw.org/akn/ke/judgment/keca/2011/414/eng@2011-03-17 2

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serve a prison term of 36 months from the date of his conviction and sentence ie 09/11/2009. Save for that clarification, this appeal is dismissed. DATED AND DELIVERED At KISUMU THIS 17TH DAY OF MARCH, 2011. P.K. TUNOI ………………........ JUDGE OF APPEAL E.O. O’KUBASU ………………....... JUDGE OF APPEAL D.K.S. AGANYANYA ………………......... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2011/414/eng@2011-03-17 3

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