[2020] KEHC 7136 (KLR)
The court found that although the applicant had misrepresented her marital status in mitigation, her incarceration was having a detrimental effect on her children, some of whom were in secondary school and dependent on her for support. The probation report indicated she was remorseful and suitable for community...
Source-derived case information.
- Citation
- [2020] KEHC 7136 (KLR)
- Parties
- Applicant: Beatrice Achieng Mbai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 5 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence revised; custodial sentence set aside and replaced with community service order
- Judges
- RE Aburili
- Legal Topics
- Sentencing Revision, Alcoholic Drinks Control, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Achieng Mbai
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed on the applicant was appropriate in light of her personal circumstances and the offence committed.
- 2 Whether the applicant should be granted a non-custodial sentence in place of imprisonment.
Ratio Decidendi
The court found that although the applicant had misrepresented her marital status in mitigation, her incarceration was having a detrimental effect on her children, some of whom were in secondary school and dependent on her for support. The probation report indicated she was remorseful and suitable for community service. The court exercised its discretion to revise the custodial sentence, setting aside the prison term and substituting it with a community service order, considering the interests of justice and the welfare of the applicant's family.
Court Disposition
sentence revised; custodial sentence set aside and replaced with community service order
Orders
- The prison term of 1 year and 1 month is set aside.
- The applicant Beatrice Achieng Mbai shall be released from prison to perform unpaid Community Service at South Ugenya Chief’s Office under supervision.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL REVISION NO. 5 OF 2020
(CORAM: R. E. ABURILI - J.)
BEATRICE ACHIENG MBAI.................................APPLICANT
VERSUS
REPUBLIC............................................................RESPONDENT
(Being an Application for revision of sentence vide Senior Resident Magistrate’s Court, Ukwala vide Criminal Case No. 552 of 2019 dated 22. 10. 2019 before Hon. C.N. Sindani, Senior Resident Magistrate)
RULING
1. The convict BEATRICE ACHIENG MBAI was convicted and sentenced to serve one year in prison for the offence of manufacturing of alcoholic drinks contrary to Section 32(1)(b) of the Alcoholic Drinks Control Act No 4 of 2016. She pleaded guilty to the charge. She also faced the second count of being in possession of the said liquor for sale being one litre of changaa without a licence.
2. In the first count, she was found to have manufactured 250 litres of Kangara which is used to manufacture changaa.
3. She readily admitted both counts and she was convicted and sentenced to pay a fine of Kshs. 100,000/=in count one and in default to serve one year imprisonment whereas in Court 2 she was fined Kshs. 3,000/= in default to serve one month imprisonment. The two sentences to run concurrently.
She has not appealed.
4. In her mitigation, she said she was a widow with 8 children.
5. No probation report was availed or called for to appreciate her social antecedents before sentencing.
6. However, this court did call for a probation report which was filed on 9/3/2020 and which shows that the convict has 6 children but she is not a widow. She therefore lied to the trial court when she stated in her mitigations that her husband died.
7. Nonetheless her incarceration has negatively affected her school going children. Some are in secondary school and the proceeds of sale of changaa is used to pay their fees and feed them. She is remorseful and promises not to reoffend.
8. Her husband is now said to be immobilized following an injury sustained in an accident. She is said to be suitable for community service at Ugenya Chief’s Camp.
9. Having considered all the above, I am persuaded that the convict who has served part of her prison term deserves a chance to change.
10. For the sake of her suffering family, I revise her sentence. I set aside prison term of 1 year and 1 month following her inability to pay the fines imposed and order that the convict Beatrice Achieng Mbai shall be released from prison to perform unpaid Community Service at South Ugenya Chief’s Office under close supervision by Mr. Christopher Muliro.
11. Orders accordingly.
Dated, signed and delivered at Siaya, this 19th Day of March 2020.
R.E. ABURILI
JUDGE