[2015] KEHC 6018 (KLR)
The court found that count 1 was defective as it charged the appellant with a non-existent offence under the Alcoholic Drinks Control Act, and thus the conviction and sentence on that count were quashed. For count 2, the plea was unequivocal, but the default sentence of one year for a fine of Kshs.10,000 was deemed...
Source-derived case information.
- Citation
- [2015] KEHC 6018 (KLR)
- Parties
- Appellant: Harriet Chepkoech Kirui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partly allowed; conviction on count 1 quashed, sentence set aside; conviction on count 2 confirmed, sentence substituted with period served; appellant to be set free unless otherwise lawfully held.
- Legal Topics
- Alcoholic Drinks Control Act, Defective Charge, Sentencing Principles, Plea Equivocality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harriet Chepkoech Kirui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge under count 1 was defective and constituted a non-existent offence.
- 2 Whether the plea entered by the appellant was unequivocal.
- 3 Whether the sentences imposed were harsh, excessive, or unlawful.
Ratio Decidendi
The court found that count 1 was defective as it charged the appellant with a non-existent offence under the Alcoholic Drinks Control Act, and thus the conviction and sentence on that count were quashed. For count 2, the plea was unequivocal, but the default sentence of one year for a fine of Kshs.10,000 was deemed harsh and excessive, especially considering the appellant had already served four months in prison. The court set aside the sentence and substituted it with a sentence of the period already served. The order that default sentences run concurrently was also set aside as unlawful. The appellant was ordered to be set free unless otherwise lawfully held.
Court Disposition
Appeal partly allowed; conviction on count 1 quashed, sentence set aside; conviction on count 2 confirmed, sentence substituted with period served; appellant to be set free unless otherwise lawfully held.
Orders
- Conviction and sentence on count 1 quashed and set aside.
- Conviction on count 2 confirmed.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
CRIMINAL APPEAL NO. 1 OF 2015
HARRIET CHEPKOECH KIRUI…………………APPELLANT
VERSUS
REPUBLIC…………………………………………….RESPONDENT
J U D G E M E N T
1. The appellant (Harriet Chepkoech Kirui) was charged and convicted of two offences under the Alcoholic Drinks Control Act. These were:-
Count 1- Possession of a substance (kangara) used in distilling changaa without a licence Contrary to section 27(1) (2) of the Act.
Count 2- Possession of ten(10) litres of Chang’aa without a licence.
2. The appellant admitted the charges in both counts and was sentenced as follows;-
Count 1- A fine of Kshs.60,000/= in default one(1) year imprisonment.
Count 2- A fine of Kshs.10,000/= in default one(1) year imprisonment.
There was a further order that the default sentences run concurrently.
3. The appellant appealed against the conviction and sentence raising from grounds which I have consolidated into two grounds namely:-
(i) The plea was equivocal.
(ii) The sentence was harsh and excessive.
4. When the appeal came for hearing the appellant who was unrepresented submitted that she was satisfied with conviction and only the sentence reduced to a non-custodial one. The state through M/S Kiptoo did not oppose the request.
5. In HCRA NO.3/15 where the appellant had been charged and convicted of a similar offence, I made a finding that there is no offence in the Alcoholic Drinks Control Act known as “Possession of a substance used in distilling an alcoholic drink.”
6. Infact there is no section known as section 27(1) (2) of the Alcoholic Drinks Control Act. However, if the drafters of the charge sheet meant section 27(1) & (2) of the said Act, then the same in not applicable in Count I since it comprises of several offences. A charge must be specific to enable an accused person know the exact offence he is charged with.
7. In this case I find Count 1 to be defective as the offence therein is non-existent. She could therefore not have pleaded to a non-existent charge.
8. I have checked the record in respect to count 2 and find it to have been unequivocal and will therefore only address the issue of sentence.
9. I find no justification in a default sentence for Kshs.60,000/= and Kshs. 10,000/= being the same. This cannot be explained. Secondly the order that the default sentences run concurrently is an unlawful orders. Default sentences always run separately; if an order has to be made then the order should be that the sentences run consecutively.
10. The appellant was found in possession of 10 litres of changaa. The default sentence of one (1) year is harsh and excessive in all circumstances. It is set aside.. I note that she has already served 4 months in prison.
11. The result is as follows. The Appeal on count 1 succeeds. The conviction is quashed while the sentence is set aside.
12. The conviction in count 2 is confirmed. The appeal only succeeds in terms of the sentence which is set aside and substituted with a sentence of the period already served.
13. The order that sentences run concurrently is also set aside.
14. The Appellant to be set free unless otherwise lawfully held under a separate warrant.
Orders accordingly.
Dated, signed and delivered this 27th February 2015.
H.I ONG’UDI
JUDGE
In the presence of:
M/s Kiptoo for state
Lagat-Court Assistant
Appellant