[2017] KEHC 2594 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT VOI

CRIMINAL REVISION CASE NO 2 OF 2017

JOSEPH MNG’ONDA WATEE……..............................................APPLICANT

VERSUS

REPUBLIC..................................................................................RESPONDENT

RULING

1. The Applicant herein was charged with the offence of selling alcoholic drinks without license contrary to Section 7(1)(c) as read with Section 53 (1) of the Taita Taveta County Alcoholic Drinks Control and Licensing Act 2016.

2. The particulars of the charge were that on 3rd March 2017 at around 1200 noon at Ndashinyi Village, Mengo Sublocation of Kishamba Location within Taita Taveta County he was found selling alcoholic drinks to wit 30 litres of Bhangara without license.

3. He pleaded guilty to the charge whereupon Hon M. Onkoba, Senior Resident Magistrate, the Learned Trial Magistrate convicted him on his own plea of guilty. While convicting him, the Learned Trial Magistrate observed that the Applicant was a habitual offender and was not deserving of a non-custodial sentence, having not benefitted from four (4) previous sentences. He therefore sentenced him to two (2) years imprisonment during which time the Applicant would have had time to reflect on his life and probably reform.

4. By a letter dated and filed on 13th March 2017, the Applicant applied for Revision on the following grounds:-

a. THAT he pleaded guilty to the offence without knowing the consequences of the same.

b. THAT the sentence of two (2) years imprisonment vis-à-vis the thirty (30) litres of Bhangara was harsh and punitive.

c. THAT the Learned Trial Magistrate did not consider his concrete mitigation and the state of his health which had deteriorated as he suffered from HIV.

d. THAT he ought to be granted the option of a fine in lieu of sentence in this matter.

5. When the Applicant appeared before this court on 17th October 2017, he looked extremely sick prompting it to order that a Probation Report be prepared with a view to considering whether or not he was suitable for a non-custodial sentence. This was despite the fact that it had noted that he had had four (4) previous convictions for the same offence.

6. In the Probation Report filed in court on 24th October 2017, the Probation Officer pointed out that the Applicant had previously been convicted in several cases for the offence of selling alcohol without licence. In Cr Case No 210 of 2013, the Applicant was placed on probation for six (6) months. In Cr Case No 477 of 2015, the Applicant was sentenced to serve six (6) months imprisonment. In Cr Case No 107 of 2015, the Applicant was fined Kshs 50,000/=. In Cr Case No 84 of 2017, the subject matter of the application herein, he was sentenced to serve two (2) years imprisonment.

7. The said Probation Officer observed that the Applicant was struggling with an eye condition and opportunistic diseases due to the fact that he was suffering from HIV and that his health had deteriorated since his incarceration. The Prison authorities had averred that at the time the Applicant was sent to prison he was in good health but that since his incarceration, he had been in and out of hospital. They contended that he had completely reformed.

8. The Probation Officer recommended that he serve the remainder of his sentence under probation. He stated that his family had undertaken to assist him financially to start a vegetable business and he himself had vowed never to engage in selling alcoholic drinks without license any more.

9. The State was not very keen to have the sentence varied due to the fact that he was a habitual offender. It was emphatic that the Probation Officer only interviewed his family members leaving out the views of the community and local administration. It, however, left the matter to the court to make its decision.

10. A perusal of the proceedings and the Probation Report that was filed on 24th October 2017 painted a picture of a notorious and habitual offender undeserving of any mercy by any court. He had been convicted four (4) times for the same offence leading this court to believe that he was not remorseful. None of the sentences seemed to have reformed him at all as he kept on going back to his old ways, almost every other two (2) years. It appeared to be a cycle.

11. On the other hand, the pathetic state of his health moved this court and led it to consider if a non-custodial sentence would be more deserving in the circumstances of the case herein. Indeed, both the State and the Probation Officer had initially been adamant that he ought not to be shown mercy. However, his physical and medical state may have persuaded them to slightly mellow down their very strong positions as the State left the matter to the discretion of the court, albeit reluctantly, and the Probation Officer recommended that he could be placed on probation.

12. A court is often times called upon to temper justice with mercy. However, the offender must not get off the hook so lightly so as to make a mockery of the justice system. In this case, none of the sentences that were imposed upon the Applicant appeared to have any impact on him at all. It is for that reason that this court was dissuaded to allow his application to impose a fine on him in lieu of the sentence.

13. The Applicant has to date served slightly more than seven (7) months in prison. It was the view of this court that he ought to serve the remainder of his sentence on probation as had been recommended in the aforesaid Probation Report. It hoped that placing him on probation for the remainder of the sentence will make him feel the pinch of not been fully free from the long arm of the law as he will be under constant supervision of the Probation Office which will hopefully keep him off from engaging in the same offence during the remainder of his sentence and thereafter.

DISPOSITION

14. For the foregoing reasons, the Applicant’s application for Revision dated and filed on 13th March 2017 was allowed to the extent that he will serve a non-custodial sentence as opposed to serving the custodial sentence of two (2) years in prison. The Applicant is hereby placed on probation for the remainder of his sentence.

15. It is hereby directed that the Applicant be released from prison forthwith unless he be held for any other lawful cause but he be escorted to the Probation Office Wundanyi immediately for it to execute the probation orders that have been imposed upon him.

16. Orders accordingly

DATED and DELIVERED at VOI this 1stday of November2017

J.KAMAU

JUDGE

In the presence of:-

Joseph Mng’onda Watee- Applicant

Miss Anyumba for State

Josephat Mavu– Court Clerk