REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 32 OF 2016 [consolidated with Criminal appeal No. 33 of 2016] 1. ALI ODHIAMBO OKARONI 2. MUSA KARIUKI..................................APPELLANTS VERSUS REPUBLIC...................................................REPUBLIC (From the original conviction and sentence in Criminal case No. 292 of 2015 of the Chief Magistrate’s Court at Busia by Hon. H.N Ndung’u– Chief Magistrate) JUDGMENT ALI ODHIAMBO OKARONI and MUSA KARIUKI the appellants were convicted in four counts for the offences of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code. The particulars of the offences were that on diverse dates the two were involved in the offences and stole various properties from the complainants therein. The first appellant was a repeat offender and was sentenced to serve 5 years imprisonment on each count whereas the second appellant who had no previous record was sentenced to serve 3 years on each count. Both have appealed against the sentences. The appellants were in person. They contended that the sentences were harsh and that they have reformed. The state opposed the appeal through Mr. Owiti, the learned counsel. He argued that the sentences were not harsh. The facts of the prosecution case were briefly as follows: On diverse dates between 21st November 2014 and 1st January 2015, the appellants were involved in a spate of burglaries and stealing where properties worth thousands of Kenya shillings were stolen. After trial they were convicted and sentenced. They are contesting the sentences. Section 279(b) of the Penal code provides as follows:
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if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; the offender is liable to imprisonment for fourteen years. Whereas section 304(2) of the Penal Code provides as Follows: If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years. It is therefore clear that the sentence meted by the learned trial magistrate was lenient. The only error that I note is the failure to sentence the appellants on each limb. I accordingly amend the sentence of each appellant to read after the sentence: On each limb. The sentence to run concurrently. The sentences will run concurrently as ordered by the learned trial magistrate. The appeal by each appellant is accordingly dismissed. DELIVERED and SIGNED at BUSIA this 7th day of November, 2017 KIARIE WAWERU KIARIE JUDGE
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