Towett v Republic (Criminal Appeal E010 of 2026) [2026] KEHC 12580 (KLR) (6 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CRIMINAL APPEAL NO. E010 OF 2026** **EMILY CHELANGAT TOWETT …….…………………..… APPELLANT** **VERSUS** **REPUBLIC ………………………………….……….….….. RESPONDENT** **JUDGEMENT** 1. The Appellant was charged with the offence of being in possession of alcoholic drinks that do not conform to the requirements of alcoholic drinks contrary to **section 27 (1) (b**) as read with **section 27 (4) of the Alcoholic Drinks Control Act.** 2. The Appellant was convicted on her own plea of guilty and was sentenced to 3 years imprisonment. Being aggrieved with the sentence, the Appellant has proffered an Appeal to this court vide a Memorandum of Appeal dated 8th July 2026 appealing against the sentence. The Appellant prayed that this court vacate the trial court sentence and substitute it with a non-custodial sentence. **Respondent’s submissions** 1. Through the written submissions dated 29th July 2026, the Respondent submitted that the Appellant had previously been charged with a similar offence, was convicted and was sentenced to pay a fine of Kshs 50,000/=. That being a habitual offender, the trial court did not err when it sentenced the Appellant to 3 years imprisonment. 2. Having gone through the record, the only issue for my determination was whether the sentence was harsh. 3. In **Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR),** the Court of Appeal stated that: - ***“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist”.*** 1. The penal section for this offence is found in **section 27(4) of the Alcoholic Drinks Control Act** which states that: - **A person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both**. 1. I have considered the circumstances of this case, the Appellant’s mitigation and the fact that the Appellant had previously been convicted on the same offence where she was sentenced to pay a fine of Kshs 50,000/=. Bearing the same in mind, it is my finding that the sentence by the trial court was harsh. 2. In the end, the trial court sentence of 3 years imprisonment is vacated and substituted with a fine of Kshs 200,000 in default to serve I year imprisonment. Right of Appeal 14 days. **Ruling delivered via on this 6th day of August, 2026 as directed by the Court.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE**