[2010] KEHC 3693 (KLR)
The trial court imposed a sentence of Kshs.50,000 fine or 12 months imprisonment in default for the offence of possession of traditional liquor for sale without a licence, contrary to section 25(1) of Cap 122. However, section 25(4) of Cap 122 prescribes a maximum penalty of Kshs.6,000 or imprisonment for a term not...
Source-derived case information.
- Citation
- [2010] KEHC 3693 (KLR)
- Parties
- Appellant: Daniel Kuria Macharia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 119 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence set aside and substituted
- Judges
- MA Warsame
- Legal Topics
- Sentencing Illegality, Traditional Liquor Offences, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kuria Macharia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court exceeded the statutory maximum under section 25(4) of Cap 122.
- 2 Whether the trial court had jurisdiction to impose a fine of Kshs.50,000 or 12 months imprisonment for the offence charged.
Ratio Decidendi
The trial court imposed a sentence of Kshs.50,000 fine or 12 months imprisonment in default for the offence of possession of traditional liquor for sale without a licence, contrary to section 25(1) of Cap 122. However, section 25(4) of Cap 122 prescribes a maximum penalty of Kshs.6,000 or imprisonment for a term not exceeding six months or both. The sentence imposed by the trial court was therefore illegal and without jurisdiction. The High Court set aside the illegal sentence and substituted it with a lawful sentence of Kshs.3,000 fine or 3 months imprisonment in default, and ordered a refund of the excess fine paid by the appellant, less the lawful amount.
Court Disposition
appeal allowed in part; sentence set aside and substituted
Orders
- The sentence imposed by the trial court is set aside.
- The appellant is ordered to pay a fine of Kshs.3,000 or serve 3 months imprisonment in default.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 119 of 2007
DANIEL KURIA MACHARIA …….……………………………APPELLANT
VERSUS
REPUBLIC ………………….…………………………….…….RESPONDENT
(From the original conviction and sentence in Criminal Case No. 1126 of 2007 of the Principal Magistrate’s
Court at Thika by F. Nyakundi - Senior Resident Magistrate)
JUDGEMENT
The appellant was charged with being in possession of traditional liquor contrary to section 25(1) of Cap 122 Laws of Kenya. It is alleged that on 4th day of March 2007 at Kiganjo estate in Thika District, he was found in possession of traditional liquor (miti ni dawa) to wit 90 litres for sale without a licence or permit. He pleaded guilty and he was fined Kshs.50,000/= in default to serve 12 months imprisonment. The appellant is aggrieved by the decision of the trial court against sentence only. It is the contention of the appellant that the sentence meted out is against the written laws of Kenya since section 25(4) of Cap 122, which he was convicted provides for a sentence of Kshs.6,000/= or imprisonment of 6 months. And that the trial court misdirected itself when she imposed a fine of Kshs.50,000/= in default 12 months imprisonment. Section 25(1) states as follows:
25(1) Any person who, not being the holder of the appropriate licence or temporary licence, manufactures for sale, sells or has in his possession for sale any traditional liquor shall be guilty of an offence.
(4) A person who is guilty of an offence under this section shall be liable to a fine not exceeding six thousand shillings or to imprisonment for a term not exceeding six months or to both.
It is therefore clear that the sentence imposed by the trial court is outrightly illegal and without jurisdiction. Consequently the sentence imposed by the trial court is set aside. I order the appellant to pay a fine of Kshs.3,000/= in default serve 3 months imprisonment. In the premises, I order that the sum paid by the appellant be refunded to him less the sum of Kshs.3,000/=. Orders accordingly.
Dated, signed and delivered at Nairobi this 14th day of January 2010.
M. WARSAME
JUDGE