[2010] KEHC 573 (KLR)
The trial court erred by imposing a custodial sentence of six months imprisonment without the option of a fine, contrary to Section 43 of the Liquor Licensing Act, which prescribes a fine as the primary sentence for a first offence. The court's discretion in sentencing must be exercised within the statutory...
Source-derived case information.
- Citation
- [2010] KEHC 573 (KLR)
- Parties
- Appellant: Frankton Chesoli; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 2 & 513 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Sentencing Discretion, Liquor Licensing Offences, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frankton Chesoli
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed exceeded the statutory maximum for the offence of operating a bar without a liquor licence.
- 2 Whether the trial court exercised its sentencing discretion lawfully under the Liquor Licensing Act.
Ratio Decidendi
The trial court erred by imposing a custodial sentence of six months imprisonment without the option of a fine, contrary to Section 43 of the Liquor Licensing Act, which prescribes a fine as the primary sentence for a first offence. The court's discretion in sentencing must be exercised within the statutory framework, and deviation constitutes an illegality. The appellate court is entitled to interfere with such an unlawful exercise of discretion. Accordingly, the sentence was reduced to the period already served, and the appellant was ordered to be set at liberty.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence is reduced to the period already served.
- The appellant shall be set at liberty.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 2 OF 2009
(Appeal against both conviction and sentence of the Resident Magistrate’s Court at Butali in Criminal Case No. 513 of 2007 [B. O. OCHIENGC. N. NDEGWA ESQ., SRM])
FRANKTON CHESOLI ------------------------------------------------------------------------------------------------------------------------------------- APPELLANT
VERSUS
REPUBLIC -------------------------------------------------------------------------------------------------------------------------------------------------- RESPONDENT
JUDGEMENT
1. At the hearingof this Appeal, Mr. Kiveu for the Appellant abandoned the appeal on conviction and on the issue of sentence, he argued that under S.43 (b) of the Liquor Licencing Act, Cap 121, the maximum sentence to be imposed for the offence of operating a bar without a liquor licence is a fine of Kshs.3,000/= and in default imprisonment to a maximum term of one year. That the sentence of six (6) months imprisonment imposed on the Appellant was therefore harsh and against the Law. That since the Appellant had already served two (2) months imprisonment, then his appeal on sentence should succeed.
2. Mr. Orinda for the State agrees and I note that S.43 of the Liquor Licencing Act provides as follows;
“S.43 – Any person who sells liquor or offers or exposes it for sale or who bottles liquor except under and in accordance with, and on such premises as may be specified in, a licence issued in that behalf under this Act shall be guilty of an offence and liable –
(a)for a first offence, to a fine not exceeding three thousand
shillings or to imprisonment for a term not exceeding nine months, or to both;
(b)For a second or subsequent offence, to a fine not
exceeding four thousand shillings or to imprisonment for a term not exceeding one year or to both;
And in addition to any penalty imposed under paragraph (a) or paragraph (b) it shall be lawful for the court to order, custody or control of the person convicted, together with the vessels containing the liquor.”
3. The Appellant had admitted the offence and what was open to the court was to exercise discretion on the sentence but within the above section. To impose a custodial sentence when a fine was the primary sentence was clearly a bad exercise of discretion and this court can interfere with that exercise of discretion. It would have been lawful had both the fine and imprisonment been meted out but to mete out imprisonment alone was clearly an illegality.
4. In the event, the Appeal is merited and the sentence is reduced to the period already served.
5. As the Appellant is out on bond, he will be at liberty and shall be refunded the cash bail posted before release on bond pending appeal.
6. Orders accordingly.
Delivered, dated and signed at Kakamega this 13th day of October, 2010.
ISAAC LENAOLA
J U D G E