Chanzo v Republic (Criminal Revision E016 of 2026) [2026] KEHC 9354 (KLR) (26 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL REVISION CASE NO. E016 OF 2026** **ALEX CHANZO…………………………………………………….……APPLICANT** **VERSUS** **REPUBLIC…………………….………………………………………..RESPONDENT** **RULING** 1. The applicant Alex Chanzo was charged with offence of being in possession of alcoholic drink(changaa) without a licence contrary to section 27(4) of alcoholic drinks control Act No. 4 of 2010, on 15th of May 2026. The particulars of the offence are; 2. On the 14th day of May, 2026 at around 1325 hours at Shimalavandu area in Kakamega Central Sub-county within Kakamega County you were found being in possession of chang’aa to wit 40 litres without a license in contravention on the said Act. 3. When the charge was read to him, he pleaded guilty. A plea of guilty was accordingly entered by the trial court. 4. The facts of the charge were read to him and the applicant in response said *“ The two jericans are mine.”* 5. The court then proceeded to convict the applicant on his own plea of guilty. 6. Then the applicant in mitigation sought for forgiveness. 7. The court then sentenced him to pay a fine of KSh. 70,000/= in default to serve three months in prison. Then the court ordered the chang’aa to be destroyed by the state in line with the relevant environmental and health regulations and protocols. Then the trial court signed off. 8. The applicant felt aggrieved by the sentence and on 26th May, 2026 via a certificate of urgency invoked this court’s revision jurisdiction pursuant to Section 364 and 365 of the Criminal Procedure Code. 9. He requested the court to impose a lesser fine or any other alternative sentence the court deemed fit. 10. He swore an affidavit on 26th May 2026 in which he swore that he did not appeal against the lower court’s decision, that he was a father of three children, that he was the sole provider for his family, he was aged 43 years old. Further, he was a peasant farmer and was ready to conform and abide by all terms and conditions court might set if the sentence is reviewed. 11. He further swore that he is a first offender, he is rehabilitated, he is reformed and much remorseful. 12. To buttrees his position he referred the court to the case of **Fatuma salo Vs Republic(2000) eKLR.** I have read the authority. 13. I have read section 362, 364 and 365 of the criminal procedure code; 14. Section 362 provides;***The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.*** 15. Section 364 provides; **(1) *In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— (a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence. (b) in the case of any other order other than an order of acquittal, alter or reverse the order. (c) in proceedings under section 203 or 296(2) of the Panel Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review. (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. (3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence. (4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. (5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.*** 1. Section 365, ***No party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision: Provided that the court may, when exercising those powers, hear any party either personally or by an advocate, and nothing in this section shall affect section 364(2).*** ***Article 165(6) of the constitution of Kenya 2010 dictates that the High Court has supervisory and review jurisdiction over proceedings in surbodinate courts. This empowers the High Court to call for and examine the records of surbodinate courts and, where appropriate, to exercise revisionary powers or resentence within the law. The Court may pass any sentence authorized by law when exercising such powers.*** 1. In the case of **Kennedy Mwaura Kibebe and 3 Others V annie Wanjiku Kibeh 2021 KEHC52** where it held that: ***“ Under Article 165(6) of the Constitution it is stated as follows…(6) The High Court has supervisory jurisdiction over the surbodinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”*** 1. I have looked at the lower court proceedings as recorded. A plea of guilty was recorded. 2. Section 207 of the Criminal Procedure code provides how a plea should be taken; 3. ***The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement. [Issue 2] (2) If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary: Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded. (3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided. (4) If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him. (5) If the accused pleads— (a) that he has been previously convicted or acquitted on the same facts of the same offence; or (b) that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.*** 4. The leading case in this is **Adan Vs the Republic 1973 E.A 445 CA of E. A.** The court laid down; 1. ***Explain the charge: The charge and all essential ingredients must be explained to the accused in a language they understand .*** 2. ***Record the response: The accused's own words must be recorded, and only if they admit the elements should a plea of guilty be entered .*** 3. ***State the facts: The prosecution must immediately outline the facts forming the basis of the case .*** 4. ***Accused's response: The accused must be given an opportunity to dispute or explain the facts .*** 5. Taking into account the above, I note the proceedings were not conducted as envisaged for the applicant was not asked whether the facts as read by the prosecutor were correct or not. He only said “the two jericans were mine.” He did not say whether the facts were correct or not. It was the duty of the court to put that question to the applicant. 6. To me this omission was fatal for the plea did not amount to an unequivocal plea of guilty as envisaged in the case of **Adan Vs. the Republic,** therefore the proceedings as recorded are irregular and cannot lead to a conviction. 7. On the issue of sentence, I have looked at the Alcoholic Drinks Control Act No. 4 of 2010. The sentence is found in section 27; ***(1) No person shall-*** ***(a) manufacture, import or distribute; or*** ***(b) possess, an alcoholic drink that does not conform to the requirements of this Act.*** ***(2) Subsection (1) shall not apply to a person who–*** ***(a) is authorized under this Act to be in possession of the alcoholic drink; or*** ***(b) has possession of the alcoholic drink in a premise licensed under this Act.*** ***(3) The manufacture or*** ***distillation of all spirituous liquor prior to this Act referred to as Chang’aa shall conform to the prescribed standards or the requirements of this Act.*** ***(4) A person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both.*** 1. As noted, the Applicant was fined Ksh.70,000 in default 3 months imprisonment. 2. Section 28 of the Penal Code sets out how fines are imposed where there is no minimum fine provided by a statute like in this case. When you look at Section 28(2) of the Penal Code a person who is jailed less than three months the fine should not exceed Ksh.15, 000. Therefore the sentence imposed by the trial magistrate is plainly illegal. 3. Having found that the plea of guilty was not unequivocal, I opine that, given the nature of the charge and the short term of the sentence, there is no need to order for re-trial, instead I set the applicant free. The applicant is set free unless lawfully held. This file is closed. If he had paid any fine, the fine be refunded to the person who paid forthwith. **DATED AND SIGNED ON THIS 26TH DAY OF JUNE, 2026.** **JUSTICE S. N. MBUNGI** **JUDGE** **IN CHAMBERS**