[2021] KEHC 2591 (KLR)
The High Court found that the trial court properly exercised its discretion in sentencing the applicant to 18 months imprisonment without the option of a fine. The sentence was not excessive or harsh given the circumstances, including the applicant's lack of remorse and the recommendation of the Probation Officer....
Source-derived case information.
- Citation
- [2021] KEHC 2591 (KLR)
- Parties
- Applicant: Eunice Gakii; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E235 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application for revision declined
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Principles, Revision Jurisdiction, Alcoholic Drinks Control, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Gakii
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred in failing to consider an option of a fine for the applicant.
- 2 Whether the sentence of 18 months imprisonment was harsh or excessive in the circumstances.
- 3 Whether there were grounds to interfere with the sentencing discretion of the trial court.
Ratio Decidendi
The High Court found that the trial court properly exercised its discretion in sentencing the applicant to 18 months imprisonment without the option of a fine. The sentence was not excessive or harsh given the circumstances, including the applicant's lack of remorse and the recommendation of the Probation Officer. The court held that there was no basis to interfere with the trial court's sentencing discretion as no wrong principle was applied and the sentence was within the statutory limits.
Court Disposition
application for revision declined
Orders
- The application for revision is declined.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL REVISION NO. E235 OF 2021
EUNICE GAKII .......................................................................................APPLLCANT
VERSUS
REPUBLIC...........................................................................................RESPONDENT
[Revision from the original conviction and sentence of the Chief Magistrate’s Court at Nkubu in Cr. Case 213 of 2021 delivered on 6th October 2021 by Hon T. Gesora, CM]
RULING
[1] The court has considered the revision sought by a letter dated 7/10/2021 by the applicant under section 364(1) (b) of the Criminal Procedure Code from the decision of the Maua CM’s Court Criminal case No. 213 of 2021 in which the trial court sentenced the applicant to imprisonment for 18 months for the offence of dealing with alcoholic drinks without a licence contrary to section 7(1) as read with 62 of Alcoholic Drinks Control Act 2010, upon a plea of guilty.
[2] The applicant complained that the trial court did not consider an option of a fine, and that the sentence was harsh; that the applicant was a first offender; and that she was a single mother of 4 children aged between 12 and 3 years who depend on her.
[3] In her own mitigation the applicant told the trial court that “I sell Changáa because I have school going children and couldn’t find another job.”
[4] The trial court also considered a Probation Officer’s pre-sentence report dated 6/10/2021 which recommended as follows:
“Your Honour, despite the current economic hard times, the accused could have sought alternative occupation instead of selling alcoholic drinks, especially to school going students. In the effort of helping the local administration fight this vice, I recommend the court not to grant the accused non-custodial sentence which offenders of illicit drinks have gotten used to, but to deal with the matter otherwise.
J. M. Kagucia
Probation Officer
Maua.”
[5] The good motive of providing for her school children cannot justify the commission of the offence of dealing with alcoholic drinks without a licence. The applicant was not remorseful in any way, and did not seek to change her ways. I consider that a custodial sentence was appropriate and the trial court was right in imposing a sentence of imprisonment without a fine as it is entitled in discretion under section 26 of the Penal Code and section 62 of the Alcoholic Drinks Act.
[6] I have not found any ground for interference with the sentencing discretion of the trial court as the sentence was neither excessive nor harsh in the circumstances of the case or based on any wrong principle. See Wanjema v. R (1971) EA 493.
ORDERS
[7] Accordingly, the application for revision by the applicant’s Counsel’s letter dated 17/10/2021 is declined.
Order accordingly.
DATED AND DELIVERED THIS 28TH DAY OF OCTOBER 2021.
EDWARD M. MURIITHI
JUDGE
APPEARANCES: MR. OMARI ADVOCATE FOR THE APPELLANT.
MS. NANDWA, PROSECUTION COUNSEL FOR THE RESPONDENT.