Joseph Mwangi v Republic [2017] KEHC 1185 (KLR)
- Citation
- [2017] KEHC 1185 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- CM Kariuki
- Case number
- Criminal Revision 2 of 2017
- Language
- English
More details
- Court
- High Court
- Panel
- CM Kariuki
- Case number
- Criminal Revision 2 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The High Court found that although the sentence imposed by the trial court was within the statutory limits, the court failed to consider the option of a fine as provided by Section 33(2) of the Alcoholic Drinks Control Act. The trial court also did not take into account the absence of previous convictions or other mitigating factors, as required by established sentencing principles. The applicant's refusal to mitigate did not justify the imposition of the maximum custodial sentence. In the circumstances, the High Court exercised its revisionary jurisdiction to alter the sentence from three months' imprisonment to a fine of Kshs. 500, considering the period already served by the applicant.
Court disposition
sentence varied; custodial sentence set aside and substituted with a fine
Orders
- The accused shall pay a fine of Kshs. 500 in place of the sentence of three months' imprisonment.
- Upon payment of the said Kshs. 500, the accused shall be released forthwith unless otherwise held.
02
Material facts
Parties
Joseph Mwangi
Applicant Counsel: Mr. TamattaRepublic
Respondent Counsel: Ms. GitauAmounts and remedies
- Fine Imposed: KES 500
03
Procedural history
Posture
Criminal Revision / Ruling
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed by the trial court was lawful and appropriate in the circumstances.
- 02
Whether the trial court erred by failing to consider the option of a fine as provided by law.
- 03
Whether the lack of mitigation by the accused justified the imposition of the maximum custodial sentence.
Party arguments
- Applicant
- The applicant argued that although he pleaded guilty to the offence of being drunk and disorderly, the trial court should have imposed a fine rather than a custodial sentence. He sought the setting aside of the custodial sentence and requested to be discharged absolutely, considering the period already served in jail.
- Respondent
- The respondent, through State Counsel Ms. Gitau, acknowledged an error in the citation of the relevant statutory provision but argued that it did not prejudice the applicant. She contended that the sentence of three months' imprisonment was within the law, as Section 33(1) as read with Section 33(2) of the Alcoholic Drinks Control Act provides for a fine of Kshs. 500 or imprisonment for three months or both.
05
Court’s reasoning
Legal principles
- 01
Alcoholic Drinks Control Act, 2010, Sections 33(1) and 33(2)
Section 33(1) and 33(2) of the Alcoholic Drinks Control Act provide that the offence of being drunk and disorderly is punishable by a fine of Kshs. 500 or imprisonment for three months or both.
- 02
Essentials of Criminal Procedure in Kenya by Patrick Kiage, p. 180
In sentencing, courts should consider factors such as the value of the subject matter, antecedents of the accused, age, and conduct during trial.
- 03
Criminal Procedure Code, Cap 75, Section 363
The High Court has revisionary powers to alter or reverse sentences except for orders of acquittal.
06
Ratio, limits and disposition
Ratio decidendi
The High Court found that although the sentence imposed by the trial court was within the statutory limits, the court failed to consider the option of a fine as provided by Section 33(2) of the Alcoholic Drinks Control Act. The trial court also did not take into account the absence of previous convictions or other mitigating factors, as required by established sentencing principles. The applicant's refusal to mitigate did not justify the imposition of the maximum custodial sentence. In the circumstances, the High Court exercised its revisionary jurisdiction to alter the sentence from three months' imprisonment to a fine of Kshs. 500, considering the period already served by the applicant.
Obiter and limits
- The trial court did not indicate what factors led to the imposition of the maximum sentence, despite the absence of previous records or aggravating circumstances.
- Sentencing should be individualized and take into account all relevant factors, including the accused's antecedents and conduct during trial.
Court disposition
sentence varied; custodial sentence set aside and substituted with a fine
- The accused shall pay a fine of Kshs. 500 in place of the sentence of three months' imprisonment.
- Upon payment of the said Kshs. 500, the accused shall be released forthwith unless otherwise held.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL REVISION CASE NO. 2 OF 2017
JOSEPH MWANGI …………………………………………….... ACCUSED
-VERSUS-
REPUBLIC ………………………………………………… PROSECUTION
RULING
1. This court is moved via revision application dated 28/03/2017 which is anchored on the provisions of Section 363 Criminal Procedure Code Cap 75 Laws of Kenya.
2. The back ground being that on 27/03/2017, the Applicant was taken to Senior Resident Magistrate’s Court Makueni in Criminal Case No. 169 of 2017 charged with and offence of being drunk and disorderly person contrary to Section 33 (1) as read with Section 32 (2) of the Alcoholic Drinks control Act 2010.
3. On charge being read to him, he admitted the charge and the facts as per the charge sheet.
4. When given opportunity to mitigate, he stated that he had no mitigation.
5. The court thereafter convicted him and sentenced him to serve 3 months imprisonment.
6. The Applicant has opted to seek a revision rather than appeal against the sentence which is the source of his complaint.
7. The matter came for hearing on 04/04/2017, and he was represented by Mr. Tamatta and the Respondent was represented by Ms. Gitau State Counsel.
8. The Applicant case is that he was charged with an offence herein above stated in which he pleaded guilty to.
9. According to him he should have been fined but not awarded custodial sentence. He therefore seeks the court to set aside same sentence and that he be discharged absolutely having regard to the jail term he has served.
10. Ms. Gitau State Counsel response is that, first there was an error on the provisions cited in the sheet as read with Section 32 (2) of Alcoholic Drink Control Act but instead Section 33 (2) Alcoholic Drink Control Act ought to have been cited. However same issue is not raised nor has the Applicant suffered any prejudice.
11. On sentence the state counsel contend that Section 33 (1) as read with Section 33 (2) provides a sentence of Kshs. 500/= or imprisonment of 3 months or both.
12. The trial court gave a maximum sentence of 3 months. The sentence is within the law.
13. I have looked at the record and the provisions of law cited namely, Section 33(1) and 33(2) Alcoholic Drink Control Act 2010. The record shows that the Applicant pleaded guilty to the charge and admitted the facts read to him. He never mitigated when opportunity arose.
14. He was noted to have no previous record. However the court failed to award a fine in sentencing but instead awarded a maximum sentence of three months. It is not known as to what factors made the trial court to award such sentence though within the law.
15. In the treatise of ESSENTIALS OF CRIMINAL PROCEDURE IN KENYA BY PATRICK KIAGEatP. 180,the same states: The matters that court should consider in determining proper sentencing include:-“Value of subject matter, Antecedents of the accused, age, conduct of accused during trial inter alia”The court in the instant case did not consider any noted elements stated above as far as the record is concerned.
16. The High court is empowered on being moved by a party……. or suo moto to exercise all the powers as court on appeal and may enhance the sentence. It has power to alter or reverse sentence or any impugned order except for an order of acquittal.
17. I have noted that the provisions of Section 33(2) Alcoholic Drink Control Act provides that the sentence of being drunkard and disorderly person under Sec. 33(1) Alcoholic Drink Control Act on conviction is a fine of Kshs.500/= or imprisonment of a term of 3 months or both. The accused refused to mitigate. The court thus did not consider the untendered mitigation when sentencing.
18. However, there was no previous record of the accused or antecedents to show his criminal record.
19. The court rationally ought to have awarded either fine or a reasonable period of imprisonment not maximum sentence in the circumstances of the instant case.
20. I find the accused refused to mitigate. I would therefore alter sentence considering the period he has served in prison, as follows:-
1)The accused shall pay a fine of Kshs.500/- in place of sentence of 3 months imprisonment.
2)Upon payment of the said Kshs.500/= he shall be released forthwith unless otherwise held.
SIGNED, DATED, AND DELIVERED AT MAKUENI THIS 5TH DAY OF APRIL, 2017.
C. KARIUKI
JUDGE
….………….
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