[2015] KEHC 1676 (KLR)
Although previous High Court decisions have held that kangara is not an alcoholic drink under the Alcoholic Drinks Control Act, the facts of this case differ as the applicant was charged with possession of kangara as an alcoholic drink and pleaded guilty, thereby admitting the substance was an alcoholic drink....
Source-derived case information.
- Citation
- [2015] KEHC 1676 (KLR)
- Parties
- Appellant: Claris Akinyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 4 of 2015
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence revised to period served
- Legal Topics
- Alcoholic Drinks Control, Possession Without Licence, Definition of Alcoholic Drink
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Claris Akinyi
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether kangara qualifies as an alcoholic drink under the Alcoholic Drinks Control Act.
- 2 Whether the conviction and sentence for possession of kangara without a licence was proper.
Ratio Decidendi
Although previous High Court decisions have held that kangara is not an alcoholic drink under the Alcoholic Drinks Control Act, the facts of this case differ as the applicant was charged with possession of kangara as an alcoholic drink and pleaded guilty, thereby admitting the substance was an alcoholic drink. However, given the State's concession and the applicant's time already served in prison, the court found it appropriate to revise the sentence to the period already served, rather than maintain the original fine or custodial sentence.
Court Disposition
sentence revised to period served
Orders
- The sentence imposed on the applicant is reduced to the period already served.
- The applicant is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
H.C CR. REV. NO. 4 OF 2015
CLARIS AKINYI--------------------------------------------------------------- APPELLANT
VERSUS
REPUBLIC-------------------------------------------------------------------RESPONDENT
RULING
In conceding to this Application for Revision, Mr. Owiti State Counsel referred this court to two decisions of Ongudi J in Mary Chepkwony vs Republic (2015 eKLR and Gladys Cherotich vs Republic(2015) eKLR. In the former decision the Judge held,
“Further, Kangara is not an alcoholic drink under Section 2 of The Act”
The Applicant herein was charged with the offence of Being in possession of Alcoholic Drinks without a Licence contrary to Section 7(1) (b) as read with Section 62 of The Alcoholic Drinks Control Act No. 4 of 2010 (The ‘Act’). The particulars being that on the 3rd day of July 2015 at Esukulu village in Bukhayo West Location within Busia County, was found in possession of kangara to wit 350 litres without a licence. On her own plea of guilty, she was convicted and fined Kenya Shillings 200,000/- and in default to serve a prison term of 12 months. The Applicant did not pay the fine and is serving the term.
Section 3 of The Act defines alcoholic drink as follows:
“alcoholic drink” includes alcohol, spirit, wine, beer traditional alcoholic drink, and any one or more of such varieties containing one-half of one per cent of more of alcohol by volume, including mixed alcoholic drinks, and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer and capable of being consumed by a human being.
This indeed is a wide definition. In Gladys Cherotich (supra), the Judge explained why she held that the kangara for which the Accused therein was charged with possessing was not an alcoholic drink. She stated
13. Is Kangara therefore an alcoholic drink? The charge sheet refers to it as a substance used in the distilling of changaa. This confirms that kangara is not an alcoholic drink but a substance used in distilling changaa which is an alcoholic drink.
I do not find any fault in the above reasoning. However the facts of the matter before this court are slightly different. Here the accused person is said to have been in possession of an alcoholic drink called kangara and not as in the Gladys Cherotich (supra) case where she was charged with being in possession of a substance called kangara used in the distilling of changaa. On my part, I cannot unequivocally say that the kangara which the Applicant here possessed is not an alcoholic drink. In any event the person facing the charge and who was in possession of the substance herself, in pleading guilty, was admitting that it was an Alcoholic Drink.
Anyhow as the State concedes, I am minded to revise the sentence imposed. The Applicant has served prison since 6th July 2015. That is just over 3 months. I reduce the sentence to the period served.
Dated, signed and delivered at Busia this 13th day of October 2015.
F. TUIYOTT
J U D G E
In the presence of :-
Orwasa ………….......C/Assistant
In persons ………... for Applicant
Owiti ………..................... for State