[2019] KEHC 9017 (KLR)
Although the sentence imposed by the trial court was within the statutory limits, the court found it to be harsh given the quantity of alcohol involved (30 litres) and the applicant's personal circumstances as a remorseful first offender and single mother. The trial court's reliance on extraneous factors, such as...
Source-derived case information.
- Citation
- [2019] KEHC 9017 (KLR)
- Parties
- Applicant: Cecilia Ciakuthi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 130 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application allowed; custodial sentence set aside and substituted with time served; applicant released forthwith unless otherwise lawfully held
- Judges
- BB Limo
- Legal Topics
- Sentencing Principles, Alcoholic Drink Control, Revisionary Jurisdiction, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Ciakuthi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the sentence imposed on the applicant was harsh and excessive in the circumstances.
- 2 Whether the trial court considered extraneous factors in sentencing the applicant.
- 3 Whether the applicant is entitled to a review of her custodial sentence to a non-custodial sentence.
Ratio Decidendi
Although the sentence imposed by the trial court was within the statutory limits, the court found it to be harsh given the quantity of alcohol involved (30 litres) and the applicant's personal circumstances as a remorseful first offender and single mother. The trial court's reliance on extraneous factors, such as attributing all societal ills to the offence, was improper. The High Court exercised its revisionary jurisdiction to set aside the two-year custodial sentence and substitute it with a sentence equivalent to the period already served (one year), finding that the applicant had learned her lesson and that further incarceration was unnecessary.
Court Disposition
application allowed; custodial sentence set aside and substituted with time served; applicant released forthwith unless otherwise lawfully held
Orders
- The sentence of two years imprisonment is set aside for being too harsh.
- The applicant is sentenced to the period already served (one year).
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL REVISION NO. 130 OF 2018
(FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO. 12 OF 2018 OF THE PRINCIPAL MAGISTRATE'S COURT AT MARIMANTI)
CECILIA CIAKUTHI...................................................APPLICANT
VERSUS
REPUBLIC.................................................................RESPONDENT
R U L I N G
1. The applicant in this matter was charged with the offence of dealing in alcoholic drink without a licence contrary to Section 7(1)(b) as read with Section 62 of the Alcoholic Drink Control Act No. 4 of 2010.
2. The particulars of the charge were that on 8th January 2018 at Kamunyaki Location in Tharaka South she was found with 30 litres of "Kathoroko" (a local alcohol drink) without licence.
The applicant pleaded guilty to the charge and was convicted on her own plea and sentenced to a fine of Kshs.200,000/- or two years imprisonment in default.
3. The applicant through a Notice of Motion dated 10th July 2018 has moved this court for review of her sentence to a non custodial sentence. The grounds given are that she is a bread winner, and a single mother whose children are now out of school as a result of her imprisonment.
4. In the exercise of my revisionary powers under Section 362 of the Criminal Procedure Code this court called for the lower court file to satisfy myself on the correctness, legality and propriety of the proceedings and sentence meted out against the applicant. I have gone through the proceedings in the lower court. I note that the sanction provided under Section 62 of the Alcoholic Drinks Act No 4 of 2010 is improvement of upto 3 years or a fine of upto Kshs.500,000/-. The sentence meted out by the trial court is within the confines of the law but given the amount of alcohol found with the applicant which is indicated as 30 litres, I am inclined to agree with the applicant that the sentence was a little bit harsh. I have also noted that the trial court may have taken into consideration some extreme factor which appears extraneous as expressed in the judgment which is:
"This court is 100% behind the National Government's effort to curb this crime and...................... note that it is the cause of all evils defiance to law, surging crime rates, HIV scourage, general illiteracy and poverty." While this court do not doubt that the said illicit brew may have caused some maladies and other social disorder, certainly it cannot be said to be a cause "of all evils" unless one can come up with empirical study to back up such claims.
In the premises, and given the fact that the applicant has already served one year of the sentence meted out against her, this court opines that she has learnt her lessons. She expressed remorse and I have noted that she has learnt useful skills while in prison which will make her useful not only to her children when released but the society at large. I allow this application. The sentence of 2 years imprisonment meted out against is set aside for being too harsh. In its place I sentence her to the period she has already served (1 year). She is therefore released forthwith unless otherwise lawfully held. Upon release she is advised to engage in useful and constructive ways and avoid destructive ways like dealing in illicit brews
Dated, signed and delivered at Chuka this 25th day of February, 2019.
R.K. LIMO
JUDGE
25/2/2019
Ruling signed, dated and delivered in the open court in presence of Momanyi for Respondent and Applicant in person:
R. K. LIMO
JUDGE
25/2/2019