https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9343

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT HOMA BAY** **CRIMINAL DIVISION** **CRIMINAL APPEAL NO. E051 OF 2025** **CHARLES ODHIAMBO ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT** **VERSUS** **REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** **(Being an appeal against the judgment of Hon. Onzere M., Senior Principal Magistrate, delivered at the Senior Principal Magistrates’ Court at Ndhiwa in Criminal Case No. CR. E297of 2024 on 2nd October 2025)** **JUDGEMENT** **[1]** This appeal arises from the decision of the Senior Principal Magistrate at Ndhiwa in CR. Case E297 of 2024, in which the appellant **Charles Odhiambo** was charged with manufacturing alcoholic drinks, contrary to Section 27(1)(a) of the **Alcoholic Drinks and Substances Control Act**, rather **Alcoholic Drinks Control Act**. It was alleged that on the 10th December, 2024 at Kobita-Malela village Ndhiwa, Homa Bay county, the appellant while in the process of manufacturing changaa was found with a steel drum, 100litres of Kangara, 20kgs of yeast and 90litres of changaa without a license. **[2]** The appellant pleaded not guilty to the charge, but after a full trial was found guilty and convicted accordingly. A sentence of three (3) years imprisonment was imposed upon him by the trial court. However, being dissatisfied with the conviction and sentence the appellant proferred the seven(7) grounds of appeal set out in the petition rather than memorandum of appeal filed herein on 3rd November, 2025. **[3]** It is clear from the supporting grounds that this appeal is essentially on sentence and not conviction. The grounds themselves are more or less a plea in mitigation and do not indicate that the appellant is complaining that the plea taking process was improper. At the hearing of the appeal, both sides presented written submissions. The state/respondent, opposed the appeal and called for its dismissal. **[4]** In his submissions, the appellant’s complaint is that the trial court disregarded his mitigation and the fact that he was remorseful and pledged to disengage himself from any criminal activity. The state/respondent contended that the sentence imposed by the trial court was just and fair and not excessive considering that the appellant was not a first offender having previously been convicted for being in possession of changaa and sentenced to serve for a period of time under a community service order. **[5]** Being an appeal on sentence, what is to be taken into consideration by an appellate court would include the legally or illegally of the sentence and whether or not it was rather excessive in the circumstances of the case. Basically, the Alcoholic Drinks Control Act regulates the production, sale and consumption of alcoholic drinks in this country with the aim to protect public health, prevent underage drink and curb illicit trade relating to alcoholic drinks. [6] Under **Section 27(4)** of the **Act**, a person who contravenes the provisions of the section shall be liable to a fine not exceeding two(2) million shillings or to imprisonment for a term not exceeding five(5) years or to both. The appellant was charged under **Section 27(1)(a)** of the **Act**, hence liable to the sentence prescribed under sub-section**(4)** of the provision. **[7]** In **Rep. Vs Mohamed Jamal (1940)15EACA 126,** it was stated that:- **“An appellate court should not interfere with the discretion by a trial judge as, to sentence except in such cases where it appears that in assessing sentence the judge has acted on some wrong principle or has imposed a sentence which is manifestly inadequate or manifestly excessive”.** **(see also, Diego Vs Republic [1984]KEHC 2{KLR}).** **[8]** In this case, the sentence imposed on the appellant by the trial court was lawful and fair in as much a it was apparently informed by the appellant’s previous conviction related to possession of alcoholic drinks. However, no official record of such previous conviction was produced by the prosecution during the sentencing proceedings to confirm the alleged previous conviction. **[9]** It would appear that the prosecution and the court relied on the pre-sentence report dated 16th October, 2025 in which the probation officer indicated that the appellant was placed on a one year community service in MCCR No.E080 of 2021. It was obviously because of this information that the appellant was treated as a previous offender and sentenced to custodial imprisonment for a period of three(3) years, rather than to a here year probation period as recommended in the pre-sentence report. **[10]** Basically, previous convictions may be vital in testing credibility of a witness and /or suspect in a criminal case, but cannot serve the purpose of proving guilt of a suspect or tendency to commit crimes. An allegation that a person has previous convictions must be proved by a certificate from the central bureau of Criminal records or by a certified copy of the court record in which the conviction occurred. **[11]** **Section 142** of the **Criminal Procedure Code** provides for mode of proof of previous conviction, such that in any trial or proceeding under the Act, a previous conviction may be proved by an extract certified, under the hand of the officer having the custody of the records of the court in which the conviction was, had to be a copy of the sentence or order or by a certificate signed by the officer in charge of the prison in which the punishment or any part thereof was inflicted by production of the warrant of commitment under which the punishment was suffered together with, in either case, evidence as to the identity of the accused person with the person so convicted. **[12]** Under **Sub-section(2)** of **Section 142 CPC**, a certificate in the form prescribed by the minister given under the hand of an officer appointed by the Minister in that behalf, who has compared the fingerprints of an accused person with the fingerprints of a person previously convicted, shall be ‘*prima-facie”* evidence of all the facts therein set out if it is produced by the person who took the finger prints of the accused. **[13]** In this case there was no form of record produced by the prosecution to prove the alleged previous conviction of the appellant. In the circumstances, he ought not have been treated as a previous offender, but a first offender. It would therefore follow that the sentence of three(3) years imprisonment imposed by the trial court upon the appellant was harsh and excessive in the circumstances with regard being given to the mitigating factors. **[14]** For all the reasons foregoing, this court finds merit in this appeal and allows it to the extent that the sentence imposed upon the appellant be and is hereby set aside and substituted for a sentence of the term already served from the date of sentence i.e 16th October, 2025. Ordered accordingly. **[**Dated, delivered, this **30TH** day of **JUNE, 2026]** ­­­­\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **HON. J.R. KARANJAH** **JUDGE**