[2014] KEHC 3937 (KLR)
The lower court erred by sentencing the applicant to imprisonment without first offering the option of a fine, as required by the Alcoholic Drinks Control Act and established sentencing practice. Additionally, the failure by the prosecutor to state the full facts deprived the court of the necessary information to...
Source-derived case information.
- Citation
- [2014] KEHC 3937 (KLR)
- Parties
- Applicant: Cyrus Ongweye; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 186 of 2014
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time and Bail Pending Appeal
- Outcome
- sentence revised; imprisonment set aside and fine imposed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Sentencing Procedure, Bail Pending Appeal, Plea of Guilty, Alcoholic Drinks Control, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Cyrus Ongweye
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time and Bail Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the sentence imposed by the lower court.
- 2 Whether the applicant should be admitted to bail pending appeal.
- 3 Whether the lower court erred in sentencing the applicant to imprisonment without offering the option of a fine as provided by law.
Ratio Decidendi
The lower court erred by sentencing the applicant to imprisonment without first offering the option of a fine, as required by the Alcoholic Drinks Control Act and established sentencing practice. Additionally, the failure by the prosecutor to state the full facts deprived the court of the necessary information to determine the seriousness of the offence and the appropriate sentence. However, the applicant understood the charge and admitted the offence. Exercising its revisionary jurisdiction under Section 364 of the Criminal Procedure Code, the High Court set aside the sentence of six months imprisonment and substituted it with a fine of Kshs. 5,000, or in default, three months imprisonment.
Court Disposition
sentence revised; imprisonment set aside and fine imposed
Orders
- The sentence of six months imprisonment is set aside.
- The applicant is to pay a fine of Kshs. 5,000 or in default serve three months imprisonment.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC CRIMINAL APPLICATION NO. 186 OF 2014
CYRUS ONGWEYE …………………………………………......APPLICANT
VERSUS
REPUBLIC ……….…………………………………………..RESPONDENT
(From the original conviction and sentence in Criminal case No.2057 of 2014 of the Chief Magistrate’s court at Kibera before B. Khaemba Senior Resident Magistrate)
RULING
This is an application for leave to appeal out of time against the sentence imposed by the lower court on 14th May, 2014. There is also a prayer for the applicant to be admitted to bail pending the entering of the appeal.
When I was seized of this matter for purposes of giving directions on 23rd June, 2014 I noticed some discrepancy in the proceedings in that, after the applicant pleaded guilty to the charge the prosecutor stated that the facts are as per charge sheet. Although it is a matter of practice for the prosecutor to state the facts, the procedure is that full facts should be stated so that the court appreciates the weight of the offence, the seriousness to be accorded thereto and be informed of the likely sentence.
The applicant herein was charged with the offence of being in possession of alcoholic drink that does not conform to the Alcoholic Drinks Control Act No. 4 of 2010. It was alleged in the particulars of the charge that he together with another was found in possession of two litres of un bottled chang’aa. He pleaded guilty to the charge and was sentenced to six months imprisonment.
The sentence provided for this offence is a fine not exceeding two million shillings or to imprisonment for a term not exceeding five years or to both. Having been denied the benefit of the full facts, the court is not able to determine whether the subject matter was for personal consumption or commercial benefit. Despite the fact that the facts were not stated, I have no doubt that the applicant understood the charge, the particulars, intended to and did actually admit the offence.
Where the penalty provides for a fine and in the alternative imprisonment, the practice is to give an accused person the benefit of the first option. In the present case the applicant was not accorded the said option. Accordingly, under Section 364 of the Criminal Procedure Code I set aside the sentence of six months imprisonment and in place thereof impose a fine of Kshs. 5,000/= in default three months imprisonment.
It is so ordered.
SIGNED DATEDandDELIVEREDin court this 26th day of June 2014.
A.MBOGHOLI MSAGHA
JUDGE