Victor Otieno Oluoch Alias Papa v Republic

4. I have gone through the record of the lower court, which is before me, and note that from the evidence of the prosecution, the offences for which the Applicant was convicted were committed in the same transaction. The question that abounds is whether the trial court, in the circumstances, properly ordered that the two sentences to run consecutively. 5. The Court of Appeal, in the case of David Jefwa Kalu v Republic [2007] KECA 254 (KLR), observed as follows, on the issue: “ But the offences on count one and count two were committed in one transaction and there was no legal basis for ordering that the sentences ought to run consecutively. We set aside the order that the sentences are to run consecutively and instead order that the two sentences shall run concurrently. Of course, the sentences are to run from the 6th October, 1999 when the appellant was sentenced by the Magistrate.” 6. The jurisprudence provided by the authority above is that courts determine whether multiple sentences should run concurrently or consecutively by applying both statutory provisions, and I will add, the Judiciary’s Sentencing Policy Guidelines. 7. The relevant provision of statute is Section 14 of the Criminal Procedure Code, which states as follows: 14. 8. Sentences in cases of conviction of several offences at one trial (1) Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court. (3) Except in cases to which section 7(1) applies, nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences— (a) of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or (b) of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose. (4) For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence. Under Section 14 of the Criminal Procedure Code, where a person is convicted of multiple offences at one trial, the court has discretion to order that the terms of imprisonment run either consecutively or concurrently. The Section provides that sentences ordinarily run consecutively, unless the court directs https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16702/eng@2025-11-11 2

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otherwise. This means that the statute gives the court latitude, but also establishes a default rule that consecutive terms may apply unless reasons exist for concurrency. 9. The Judiciary’s Sentencing Policy Guidelines refine this discretion by setting out clear principles, by stating that sentences should run concurrently when the offences arise from the same transaction, are committed in a continuous sequence or form part of a single criminal enterprise. 10. The Guidelines further clarify that concurrency is appropriate where the criminal conduct is so closely linked that treating each count separately would exaggerate the offender’s overall culpability. 11. Conversely, the Guidelines indicate that consecutive sentences are appropriate where offences are distinct in time, involve separate victims or constitute independent criminal acts. This ensures that sentencing reflects the multiplicity and gravity of harm caused. 12. Thus then, in the matter before the trial court, concurrency was the proper approach as the offences were committed in the same transaction. Were the offences to be separate and/or be constituted of unrelated acts, the same would justify consecutiveness. 13. Trial/sentencing courts are therefore required to exercise their discretion judiciously, guided by Section 14 of the Criminal Procedure Code and the Judiciary’s Sentencing Policy Guidelines, to ensure that the final sentence(s) is/are proportionate, logical and fair in reflecting both the offender’s conduct and the harm caused. 14. The result of my discussion above is that I reach the persuasion that the Applicant’s application by Motion on Notice dated 17th January, 2025 is merited. 15. I proceed to allow the application, only to the extent that the trial court’s order that the sentences are to run consecutively is hereby set aside and substituted with an order that the sentence of 7 years imprisonment in Count I and that of 2 years imprisonment in Count II, shall run concurrently, from 21st August, 2020. 16. This file is closed. DELIVERED (VIRTUALLY) DATED AND SIGNED THIS 11TH DAY OF NOVEMBER, 2025. JOE M. OMIDO JUDGE Applicant: Present, Virtually. Respondent: Ms. Muema. Court Assistants: Mr. Ngoe & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16702/eng@2025-11-11 3

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