https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8118

Shitiavai v Republic (Criminal Appeal E013 of 2026) [2026] KEHC 8118 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8118 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E013 of 2026 RN Nyakundi, J June 9, 2026 Between Flora Shitiavai Appellant and Republic Respondent (Being an appeal from the sentence of the Learned Trial Magistrate Hon L.A MBOSS delivered on the 13th of April 2026 in Hamisi Magistrate’s Court Case No. E201 of 2026) Judgment 1.The Appellant herein was charged with the offence of being in possession of Alcoholic Drinks contrary to section 27(1)(b) as read with section 27(4) of the Alcoholic Drinks Control Act No. 4 of 2020. The particulars of the offence were that on the 1st day of April 2026 at Kaptenje Village, Kisasi Sub-Location, Shamakhokho Location in Tiriki East – Subcounty within Vihiga County, she was found in possession of illicit brew namely Chang’aa to wit fifty (50) litres in two yellow twenty-liter jerrycans and one yellow ten litre jerrycan in contravention of the said act. 2.The Appellant pleaded guilty for the offence. The trial Court vide its judgment dated 13th April 2026 sentenced the Appellant for fine of Kshs. 130,000/= and in default to serve 15 months imprisonment. 3.Being dissatisfied with the aforesaid judgment, the Appellant filed this instant petition dated 23rd day of April 2026 to this Honourable Court to review, set aside or vary the said sentence on the following grounds: -a.The sentence of a fine of Kshs. 130,000 in default 15 months imprisonment is manifestly excessive, harsh and disproportionate having regard to the nature of the offence the character of the Appellant and the general sentencing principles applicable in Kenya.b.The learned trial Magistrate erred in law and in fact by failing to adequately consider and give proper weight to the guilty plea entered by the Appellant at the earliest opportunity, which is a weighty mitigating factor warranting a substantial reduction in sentence.c.The learned trial Magistrate failed to give due regard to the mitigation advanced by the Appellant.d.The sentence imposed does not reflect the principle of proportionality and individualized justice as required under the Constitution of Kenya 2010 and the Sentencing Policy Guidelines.e.The trial Court failed to consider alternative and more appropriate sentencing options such as a community service order, a lesser fine, a conditional discharge or a suspended sentence which would have been more proportionate in the circumstances. 4.The Appellant sought for the following prayers from her Petition that this Honourable Court: -a.Allow this Petition of Appeal.b.Set aside the sentence of a fine of Kshs. 130,000 in default 15 months imprisonment.c.Substitute a sentence that is proportionate, just and commensurate with the circumstances of the Appellant and the offence.d.Grant such further or other relief that this Honourable Court may deem just and fit in the circumstances. 5.The Petition was supported vide a Supporting Affidavit sworn by the Appellant who deponed as follows: -a.That I am the Appellant in the above-captioned matter and I am fully conversant with the facts herein. I am an adult female of sound mind and I swear this Affidavit in support of my Petition of Appeal dated 23rd April 2026.b.That I was charged with the offence of Being in Possession of Alcoholic Drinks Contrary to Section 29(b) as read with Section 29(a) of the Alcoholic Drinks Control Act No. 4 of 2010.c.That on 2nd April 2026, I appeared before the Honourable HON. L.A. MBOSS (RM) and freely and voluntarily entered a plea of guilty to the charge after the same was read and explained to me in English/Kiswahili a language I fully understand.d.That upon entering my plea of guilty, I tendered mitigation before the Honourable Court wherein I informed the Court that I am the sole provider and primary caregiver of my family and that economic hardship was the reason I committed the offence. I prayed for the forgiveness of the Court.e.That notwithstanding my guilty plea and the mitigation tendered, the Court proceeded to sentence me on 13th April 2026 to a fine of Kshs. 130,000 in default 15 months imprisonment.f.That I am a first offender and I have no prior criminal record whatsoever as confirmed in the Court record of proceedings.g.That I am the sole breadwinner and primary caregiver of my family. My family depends entirely and exclusively upon me for food, shelter, clothing, education and all other basic necessities of life. My incarceration upon default, even temporarily, would render my family destitute and would deprive my dependents of their only source of support and care, visiting irreparable harm upon innocent persons.h.That I am currently unwell and am on prescribed medication for an existing medical condition. My health condition was not adequately brought to the Court's attention with the full weight it deserved at the time of sentencing and a custodial sentence would be gravely prejudicial to my health and welfare.i.That I am a person of limited financial means and I am genuinely unable to raise the sum of Kshs. 130,000 imposed as a fine. The said fine is wholly disproportionate to my financial capacity and circumstances and is beyond my ability to pay without significant hardship.j.That I genuinely regret the commission of the offence and I am remorseful. My plea of guilty was an unequivocal expression of that remorse and my willingness to take responsibility.k.That I verily believe that the sentence imposed upon me is manifestly harsh, excessive and unjust and that the trial Court failed to properly apply the relevant sentencing principles and guidelines applicable in Kenya. 6.A look at the Case Tracking System (CTS) and Court record indicates that the Respondent had not yet filed a response to the Petition despite being served and an Affidavit of Service being on the record. Moreover, both the Appellant and the Respondent had not yet filed submissions with respect to the Petition herein. I will determine the appeal herein on its merit regardless. Analysis and Determination 7.Sentencing is an exercise of discretion by the trial Court. In Benard Kimani Gacheru Vs Republic (2002) eKLR it was thus: -“It is now settled law, following several authorities by this Court and by the High Court that sentence is a matter which rests in the discretion of the trial Court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial Court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate Court feels that the sentence is heavy and the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial Court on sentence unless anyone of the matter stated is shown to exist.”This Court is therefore called upon to determine whether the sentence imposed upon the Appellant was proper and whether there exists sufficient basis for appellate interference. Having considered the Petition of Appeal, the Supporting Affidavit and the record of the lower Court, the issue arising for determination is; Whether the sentence of a fine of Kshs. 130,000/= in default fifteen (15) months imprisonment was harsh and/or excessive? 8.This Court’s Revisionary jurisdiction is exercised under the provisions of section 362 of the Criminal Procedure Code which provides: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate Court." 9.The record reveals that the Appellant pleaded guilty at the earliest available opportunity. The plea of guilty saved judicial time and resources and demonstrated acceptance of responsibility for her actions. A guilty plea has always been recognized as a significant mitigating factor in criminal proceedings. 10.This being a revision for a sentence, the applicable law is section 364 (1) (a) of the Criminal Procedure Code which provides: -“In the case of a proceeding in a subordinate Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of a conviction, exercise any of the powers conferred on it as a Court of appeal by sections 354, 357 and 358, and may enhance the sentence.” 11.In the case of Joseph Nduvi Mbuvi Vs Republic [2019] eKLR, Odunga J. (as he then was) held that: -“In my view, the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions ....As was stated by the High Court of Malaysia in Public Prosecutor Vs Muhari Bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:-“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower Court should be interfered with in the interest of justice. 12.The offence under section 27 of the Alcoholic Drinks Control Act No. 4 of 2010 provides thus: -“ 27.(1)No person shall –(a)manufacture, import or distribute; or(b)possess, an alcoholic drink that does not conform to the requirements of this Act. (2)Subsection (1) shall not apply to a person who –(a)is authorized under this Act to be in possession of the alcoholic drink; or(b)has possession of the alcoholic drink in a premises licensed under this Act.(3)The manufacture or distillation of all spirituous liquor prior to this Act referred to as Chang’aa shall conform to the prescribed standards or the requirements of this Act.(4)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.” 13.However, the principle of sentencing in case of fines is set out in of the Kenya Judiciary Sentencing Policy at paragraph 2.7.5, page 21 that: -“Where the option of a fine is provided in the law, the Court must first consider it before proceeding to impose a custodial sentence. If in the circumstances a fine is not a suitable sentence, then the Court should expressly indicate the reasons why it is not appropriate to impose a fine.” 14.In the case of Thomas Mwambu Wenyi Vs Republic [2017] eKLR, the Court of Appeal cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the Court held the following on sentencing: -“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The Courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the Courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The Court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.” 15.Sentencing is therefore not merely a mathematical exercise. It requires a balancing of the public interest, the seriousness of the offence and the circumstances of the offender. The Appellant informed the trial Court that she was the sole breadwinner and caregiver of her family. For the offence in hand, section 27 (4) of the Alcoholic Drinks Control Act No. 4 of 2010 provides thus; (4) 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.” It is therefore my finding that the trial Court issued a lenient sentence to the Appellant. 16.Moreover, the trial Court cannot be faulted for the sentence imposed as it acted within the parameters expressly provided under Section 27(4) of the Alcoholic Drinks Control Act. In the present case, the Appellant was found in possession of fifty (50) litres of illicit chang’aa, a prohibited alcoholic drinks whose manufacture, possession and distribution pose significant risks to public health and safety. The quantity recovered was not negligible and demonstrated a deliberate violation of the law. Further, although the Appellant was a first offender and pleaded guilty, the learned trial magistrate duly exercised judicial discretion by imposing a fine of Kshs. 130,000/=, which was considerably below the statutory maximum, with a default sentence of fifteen months’ imprisonment, which was likewise well below the maximum custodial sentence permitted by law. The sentence was therefore lawful, proportionate and commensurate with the gravity of the offence. Sentencing serves not only the purpose of rehabilitation but also deterrence and denunciation of unlawful conduct. 17.Considering the prevalence of illicit alcoholic drinks and their devastating effects on communities, the sentence imposed was necessary to underscore the seriousness with which such offences are viewed and to discourage similar violations. 18.Accordingly, this Court finds no basis for interfering with the exercise of the trial Court’s discretion, as the sentence was neither harsh nor excessive in the circumstances but rather a proper and judicious application of Section 27(4) of the Alcoholic Drinks Control Act No. 4 of 2020. Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………..R. NYAKUNDIJUDGE