Patrick Ambetsa Okello v Republic

uttering the forged title deed to Principal Magistrate Naomi Wairimu at the Eldoret Chief Magistrate's Court on April 3, 2019. For Count 6, both accused are charged with jointly making a false letter of confirmation of the title deed (Ref: CID/C/GEN/6/6/LANDS/OUT/ VOL.II/889) on April 2, 2019, purporting it was issued by Anastacius Muriuki for the DCIO Eldoret West, while Count 7 charges Okello with uttering this false letter to Principal Magistrate Naomi Wairimu on April 3, 2019. Counts 8 and 9 involve a letter of verification (Ref: UG/VERIFICATION.GEN/VOL.VII/); Count 8 charges both with making the false letter on April 1, 2019, pretending it was issued by Land Registrar Mark Wanderi Muigai, and Count 9 charges Okello with uttering it to Magistrate Wairimu on April 3, 2019. Finally, counts 10 and 11 concern a falsified Kenyan National Identification Card (No. 9765579) in the name of Wilfred Boiyo Turunya; Count 10 charges both with making the false ID card, and Count 11 charges Okello with uttering it to Principal Magistrate Naomi Wairimu at the Eldoret Court on April 3, 2019. 2. The trial Court on hearing the matter on the merits found the Appellant guilty on all counts proceeded to convicted and sentence him as follows on 30th October 2023: fi Count I-III forgery contrary to Section 350(1) of the Penal Code fi Count IV- conspiracy to defeat justice contrary to Section 117(c) of the Penal Code fi Count V, VII, IX, XI – uttering a document contrary to Section 353 of the Penal Code fi Count VI, VII, X – making a false document contrary to Section 347(d)(i) of the Penal Code And was convicted and sentenced to serve 5 months in each and in default to pay a fine of Kshs. 2,000/= in each count and the sentence to run consecutively. CRIMINAL APPEAL NO. E104 OF 2023 2

page 2 of 9

3. The Appellant has since filed an appeal, challenging the sentence under the auspices of Section 333(2) of the Criminal Procedure Code. The grounds of appeal are as hereunder: a. That this appellate Court to allow his sentences to run from the date of his arrest being 28th August, 2019 as provided under Section 333(2) of the CPC since the trial Court did not consider the same to be factored in as part of his sentence. b. That it may please the Court to allow his sentences to run concurrently since all the offences emanate from a single transaction. c. That it may please the Court to find that the sentence of 50 months imprisonment under the circumstances was excessive considering the time the Appellant spent in pre-trial custody. d. That the Court may be pleased to find that the Appellant has fully rehabilitated and reformed since he has undergone various rehabilitation programs offered at the prison. 4. The Appellant prayed that may this Honourable Court be pleased to allow his appeal and order that it runs from the date of pre-trial detention. Analysis and Determination 5. In deciding this appeal, I have perused through the judgment together with the sentence imposed and the question that is manifest is whether the sentence can be reviewed to conform with the provisions of Section 333(2) of the Criminal Procedure Code. In David Njuguna Wairimu v Republic [2010] eKLR, the Court of Appeal stated that duty as follows: “The duty of the first appellate Court is to analyze and re-evaluate the evidence which was before the trial Court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial Court. There are instances where the first appellate Court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower Court. It may rehash those conclusions. We do not think there is anything objectionable in doing CRIMINAL APPEAL NO. E104 OF 2023 3

page 3 of 9

so, provided it is clear that the Court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 6. Let me start by stating that sentencing is a discretion of the Court. But the Court should look at the facts and the circumstances of the case in it’s entirely so as to arrive at appropriate sentence. The Court of Appeal in Thomas Mwambu Wenyi v Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira v State of Mahareshtra at paragraph 70-71 where the Court held the following on sentencing: “Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The Courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the Courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The Court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.” 7. Also in the case of Francis Karioko Muruatetu & Another v Republic (Supra) where the Supreme Court stated the guidelines and mitigating factors in a re-hearing on sentence were discussed. The judiciary has also developed Judiciary Sentencing Policy Guidelines lists the objectives of sentencing at page 15 paragraph 4.1 which should be considered. CRIMINAL APPEAL NO. E104 OF 2023 4

page 4 of 9

8. A glimpse of the Appellant’s application clearly calls for a re-hearing of the sentence imposed. Article 50 (2) (p) of the Constitution provides as follows: Every accused person has the right to a fair trial, which includes the right— to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and 9. The anchor of Section 333(2) of the CPC provides that in sentencing, where an accused person was in remand custody the period spent in custody should be taken into account. It reads: “Subject to the provisions of Section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to conclude the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 10. I have considered the appeal and all the information available. From the record, it is evident that the Appellant spent some time in pre-trial custody. The Appellant was arrested on 28 th August, 2019 and the Court sentenced him on 27th October, 2023 taking into account the five years he spent in pretrial detention. Therefore, Section 333(2) of the CPC does not apply as a remedy for the Appellant as the same is res judicata. Strictly speaking, the civil law doctrine of res judicata (barring a second lawsuit over the same claim) does not apply in criminal cases. Instead, criminal law handles the finality of judgments through the constitutional and statutory doctrines of double jeopardy (autrefois acquit or autrefois convict) and issue estoppel, which prevent trying an accused person twice for the same offense or relitigating specific settled facts. CRIMINAL APPEAL NO. E104 OF 2023 5

page 5 of 9

11. However, this doctrine should not be looked at from the lens of the prosecution or the State but is must be nuanced from the perspective of the defence. This means the issue of estoppel stops the Appellant/Convict from re-urging a factual issue that was already decided in favour of the prosecution or against him in a prior trial. There is also the condition precedent on finality of judgments. In both civil and criminal law. This ensures that once a criminal case is fully heard and decided it cannot be reopened through a parallel or repeated criminal Judge. 12. In our domestic law the concept of admissibility of a criminal case concerns the power of the Court to exercise its jurisdiction in a particular case or matter raised by either the prosecution or the defence. It is the rule of admissibility that defines when a Court or tribunal should dismiss a case or continue to decide it on the merits. I have screened the record of the Trial Court, the judgment delivered conclusively ruled on the application of Section 333(2) of the CPC by giving credit of 5 years pretrial detention to the Appellant before this forum. Walking through this framework, this issue on pretrial detention cannot be revisited again by this Court as submitted by the Appellant. It is therefore moot. 13. The other controversial issue on this matter falls within the scope of Section 14 of the CPC in which the Kenyan Courts have the discretion to decide if multiple prison terms run concurrently together or consecutively, one after another. The applicable principles include the following: fi Single Transaction Rule: Offenses arising from the same act or continuous transaction should run concurrently unless exceptional circumstances exist. fi Multiple Transactions: Separate, distinct acts or multiple victims justify consecutive sentencing. fi Totality Principle: The final cumulative sentence must remain just, proportionate, and reflective of total criminality. 14. This is the legal position taken by the legislature on the law to deal with consecutive and concurrent sentences: CRIMINAL APPEAL NO. E104 OF 2023 6

page 6 of 9

Section 14 of the Criminal Procedure code provides as follows:“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”. 15. The Sentence Policy Guidelines provide as follows: “7.13 – Where the offence emanates from a single transaction the sentences should run concurrently. However, where the offences are CRIMINAL APPEAL NO. E104 OF 2023 7

page 7 of 9

committed in the course of multiple transactions and where there are multiple victims the sentences should run consecutively”. 16. The Court in Republic Another [1941] EACA and versus revisited Saidi again Nsabuga s/o Juma in Nayhan & versus Republic [1965] the Court states as follows: “If a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action purpose or by relation of cause and effect was to constitute one transaction then the offences constituted by these series of acts are committed in the course of the same transaction. The one transaction rule requires that where two or more offences are committed in the course of a single transaction, the sentencing Court should consider an order for concurrent instead of consecutive”. 17. Where the crime ascribed to an accused regardless of their characterization but form part of a single crimes committed in a given geographical period given during a specific time period of appropriate for the single sentences imposed for all the convictions to run concurrently unless there are exceptional circumstances for the judicial discretion to be exercised towards consecutive sentencing. Am also of the consider view that a trial Court should only impose consecutive sentences in exceptional circumstances. This is not one such case although it happened that the Appellant was sentenced to a fine and the default of 55 months arose from that parameter. 18. From the above analysis and appreciation of the law, the orders on consecutive sentences be and is hereby reviewed under Section 362 as read with 364 of the CPC to have the orders substituted with concurrent execution of the sentence. This strength of the law applied to the facts of this case favours for a review order to have the Appellant terms of imprisonment be placed under the criteria of concurrent sentences which would provide in a general context of him benefiting from an early release for a homebased rehabilitation. CRIMINAL APPEAL NO. E104 OF 2023 I hope during the time of his 8

page 8 of 9

incarceration the Appellant has learned lessons that unlawful actions for quick enrichment sometimes can destroy the purposive-driven life of individuals. It is so ordered. DATED, DELIVERED AND SIGNED AT ELDORET THIS 20 TH AUGUST, 2026. …………………………………………. R. NYAKUNDI JUDGE In the presence of: The State Counsel Ms Kirenge The Appellant CRIMINAL APPEAL NO. E104 OF 2023 9

page 9 of 9