https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12654

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ITEN** **CRIMINAL REVISION NO E006 OF 2026** **JUDY JEPTOO SEREM………………….………………………………..……. APPLICANT** **-VERSUS-** **REPUBLIC………………………………………………………………..…... RESPONDENT** **[Being a revision against the sentence by the Hon. E.Kigen** **(PM) in Iten CR No. E194 of 2026]** **RULING** **Introduction** 1. This is an application for revision of sentence brought before this Court pursuant to Sections 362 and 364 of the Criminal Procedure Code. The applicant seeks the intervention of this Court to review and revise the sentence imposed upon her by the subordinate court in Criminal Case No. …… of 2026. 2. The applicant was charged before the subordinate court with the offence of **manufacturing alcoholic drinks without a licence**, contrary to the provisions of the Alcoholic Drinks Control Act. 3. The particulars of the offence were that on **24th January 2026**, at a place specified in the charge sheet, the applicant was found having manufactured **100 litres of kangara**, a substance used in the manufacture of chang'aa, without a licence. 4. The applicant pleaded guilty to the charge. The record indicates that the charge was read and explained to her in a language she understood, and she admitted the particulars thereof. The prosecution thereafter presented the facts, which the applicant admitted to be correct. A conviction was consequently entered on her own plea of guilty. 5. Upon conviction, the applicant was sentenced to pay a fine of **Kshs.100,000/=**, and in default thereof, to serve one (1) year imprisonment. 6. Being dissatisfied with the sentence, the applicant moved this Court seeking revision on the basis that the sentence was harsh, excessive and disproportionate in the circumstances. She contends that the trial court failed to give sufficient consideration to her mitigation, including her status as a first offender, her remorsefulness, and her personal circumstances. 7. The applicant states that she recently lost both her parents and that she is the sole caregiver of a minor child who is currently in Class Six and entirely dependent upon her for care, maintenance and education. 8. The respondent opposed the application and maintained that the sentence imposed by the trial court was lawful, proper and within the discretion of the sentencing court. It was submitted that the applicant had failed to demonstrate any illegality, incorrectness, impropriety or irregularity in the proceedings or sentence to warrant the exercise of this Court’s revisionary jurisdiction. **Background** 1. The record of the subordinate court shows that the applicant was arraigned before the court and charged with manufacturing alcoholic drinks without a licence. The prosecution alleged that she had manufactured approximately 100 litres of kangara, used in the manufacture of chang'aa, without authorization under the law. 2. The applicant pleaded guilty. The plea was recorded after the charge and its particulars were read and explained to her. The prosecution thereafter stated the facts in support of the charge, which the applicant admitted. 3. The trial court convicted the applicant on her own plea of guilty and proceeded to receive her mitigation before sentencing her. 4. The applicant subsequently approached this Court seeking revision of the sentence, contending that the circumstances of her case called for a more lenient and rehabilitative approach. **The Application** 1. The application is supported by the applicant’s affidavit sworn in support thereof. The applicant depones that she is a first offender and that she pleaded guilty at the earliest opportunity. She states that she is remorseful and regrets the circumstances that led to her conviction. 2. The applicant further avers that she recently lost both her parents and annexed obituary booklets and burial permits in support of this assertion. 3. She also annexed the birth certificate of the minor child under her care and contends that the child, who is in Class Six, entirely depends upon her for support, care and education. 4. The applicant states that the custodial consequences of the sentence have adversely affected the welfare of the minor child and urges the Court to consider the best interests of the child. 5. She undertakes to abide by any lawful conditions imposed by the Court and expresses willingness to comply with a reduced fine, probation supervision or community service. 6. The applicant therefore prays that this Court exercises its discretion under Sections 362 and 364 of the Criminal Procedure Code and revises the sentence by reducing the fine or substituting the sentence with an appropriate non-custodial order. **Applicant’s Submissions** 1. The applicant relied on written submissions in support of the application. Counsel submitted that the application was properly before this Court under Sections 362 and 364 of the Criminal Procedure Code. 2. It was submitted that the sentence imposed was harsh, excessive and disproportionate considering the applicant’s personal circumstances, constitutional rights and the principles governing sentencing. 3. Counsel emphasized that the applicant was a first offender who pleaded guilty, thereby demonstrating acceptance of responsibility and saving judicial time. 4. It was further submitted that the applicant was remorseful and willing to abide by any lawful conditions imposed by the Court. 5. The applicant argued that the learned trial magistrate failed to properly consider her mitigation, particularly her recent loss of both parents and her responsibility as the sole caregiver of a minor child. 6. Reliance was placed on Articles 28, 50 and 53 of the Constitution, and it was submitted that sentencing must respect human dignity, fair trial principles and the best interests of the child. 7. Counsel further argued that the fine imposed was beyond the applicant’s means and that a fine which results in automatic imprisonment due to inability to pay may operate disproportionately against economically disadvantaged offenders. 8. The applicant also challenged the conviction by submitting that no manufacturing equipment was recovered and that mere possession of alcohol did not necessarily constitute the offence of manufacturing unless linked to manufacture, sale or distribution. 9. It was submitted that the charge sheet did not properly disclose an offence known in law and that Article 50(2)(n) of the Constitution had been violated. 10. The applicant relied on **State v Ocheing**, where the Court held that failure to consider mitigating circumstances may amount to a misdirection in sentencing. 11. The applicant urged the Court to revise the sentence and substitute it with an appropriate non-custodial sentence. **Respondent’s Submissions** 1. The respondent opposed the application through written submissions. 2. It was submitted that the sentence imposed by the trial court was lawful, proper and within the discretion vested in the sentencing court. The respondent maintained that the applicant had failed to demonstrate any illegality, incorrectness, impropriety or procedural irregularity in the proceedings or sentence to warrant interference by this Court. 3. The respondent argued that the matters raised by the applicant related primarily to mitigation and the severity of sentence, which are ordinarily matters for an appeal and do not, without more, constitute grounds for revision under Sections 362 and 364 of the Criminal Procedure Code. 4. It was further submitted that the applicant’s challenge to the charge sheet, the sufficiency of the facts and the ingredients of the offence amounted to an indirect challenge against the conviction itself, which could not properly be entertained in an application restricted to revision of sentence. 5. On the issue of legal representation, the respondent submitted that the absence of legal representation in a plea of guilty to a non-capital offence does not automatically render the proceedings irregular or entitle an accused person to revision of sentence. 6. The respondent further submitted that offences involving the unlawful manufacture of alcoholic drinks are serious and prevalent, posing risks to public health and safety. It was argued that sentences imposed in such cases serve the important purposes of deterrence, denunciation and protection of society. 7. The respondent urged the Court to uphold the sentence imposed by the trial court and dismiss the application. **Issues for Determination** 1. Having considered the application, the affidavits in support thereof, the submissions by both parties and the record of the subordinate court, the following issues arise for determination: 2. Whether the applicant has established a basis for this Court to exercise its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code. 3. Whether the sentence imposed by the subordinate court was illegal, improper, excessive or otherwise warrants interference by this Court. 4. Whether, in light of the applicant’s personal circumstances and the interests of justice, the sentence ought to be revised and substituted with an appropriate non-custodial intervention. **Applicable Law and Jurisprudence.** **Revisionary Jurisdiction of the High Court** 1. The jurisdiction of this Court in revision is derived from Sections 362 and 364 of the Criminal Procedure Code. 2. Section 362 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.”* 3. The provision confers upon the High Court a supervisory jurisdiction over subordinate courts. However, that jurisdiction is not equivalent to an appeal. It exists to ensure that subordinate courts act within the law and that proceedings are conducted regularly and fairly. 4. The Court of Appeal in **Director of Public Prosecutions v Samuel Kimuchu Gichuru & Another [2019] eKLR** emphasized that revision is concerned with the legality, correctness and propriety of proceedings and decisions of subordinate courts and is not intended to provide a second appellate avenue. 5. Similarly, in **Republic v James Kiarie Mutungei [2017] eKLR**, the High Court observed that revision is intended to correct errors, illegalities or irregularities apparent on the record and should not be invoked merely because a party is dissatisfied with a decision. 6. The distinction between revision and appeal was also considered in **Republic v Ajit Singh s/o Vir Singh [1957] EA 822**, where the Court held that revisionary powers are supervisory in nature and are exercised to ensure that subordinate courts have acted within their jurisdiction and according to law. 7. Accordingly, a party invoking revision must demonstrate something more than dissatisfaction with the outcome. There must be a demonstrated illegality, incorrectness, impropriety or material irregularity. **Whether the Applicant’s Challenge to the Conviction Falls Within Revision** 1. The applicant has advanced arguments questioning the propriety of the conviction, particularly that no manufacturing equipment was recovered and that the facts presented did not establish the offence of manufacturing alcoholic drinks without a licence. 2. The applicant further contends that the charge sheet did not disclose an offence known in law and invokes Article 50(2)(n) of the Constitution. 3. This Court must however consider the circumstances under which the conviction arose. The applicant was convicted following a plea of guilty. 4. The procedure governing pleas of guilty was authoritatively set out in **Adan v Republic [1973] EA 445,** where the Court held that a proper plea requires that the charge and its essential elements be explained to the accused in a language understood by him or her; the accused must admit the offence; and the facts must thereafter be presented and accepted before conviction can follow. 5. The record before this Court does not reveal any irregularity in the manner in which the plea was taken. The applicant admitted the charge, admitted the facts and was convicted accordingly. 6. **The applicant's argument that no manufacturing equipment was recovered is, in essence, a challenge to the factual basis upon which the plea of guilty was recorded and the conviction entered. Whether the evidence sufficiently established the act of manufacture is a question touching on the merits of the conviction. Having pleaded guilty and admitted the facts as presented, the applicant cannot properly invite this Court, in revision proceedings limited to sentence, to reopen the evidential foundation of the conviction.** 7. The Court therefore finds that the applicant’s contention that the prosecution facts did not establish the offence is, in substance, an appeal against the conviction disguised as an application for revision of sentence. **52.** Such an inquiry would require this Court to reassess the factual basis upon which the conviction was entered, a function that properly belongs to an appellate court and not to a court exercising revisionary jurisdiction. **53.** The Court therefore agrees with the respondent that the applicant cannot, through an application for revision of sentence, convert this Court into an appellate court to re-evaluate the factual basis of the conviction. **54.** The Court shall consequently confine itself to the question whether the sentence imposed was lawful and proper. ## **Legality of the Sentence** 1. The Court has considered whether the sentence imposed by the learned trial magistrate was lawful. The applicant was convicted for the offence of **manufacturing alcoholic drinks without a licence contrary to Section 7(1)(a) as read with Section 62 of the Alcoholic Drinks Control Act.** 2. Section 7(1)(a) of the Alcoholic Drinks Control Act prohibits any person from manufacturing or otherwise producing an alcoholic drink except under and in accordance with a licence issued under the Act. Section 62 of the Act provides the general penalty for offences under the Act where no specific penalty is prescribed, being a fine not exceeding Kshs.500,000/=, imprisonment for a term not exceeding three years, or both. 3. The sentence imposed by the learned trial magistrate, being a fine of Kshs.100,000/= or one (1) year imprisonment in default, was therefore within the statutory limits prescribed by Parliament. The applicant has consequently not demonstrated that the sentence was illegal. 4. However, legality of sentence is only one aspect of the Court’s inquiry. A sentence may be lawful and yet be improper if the discretion to impose it was exercised without due regard to relevant sentencing principles or material mitigating factors. 5. The issue that remains for determination is therefore whether, in the circumstances of this case, the learned trial magistrate properly exercised sentencing discretion and whether the sentence imposed was proportionate, appropriate and consistent with the objectives of sentencing. 6. The Court therefore agrees with the respondent that the applicant cannot, through an application for revision of sentence, convert this Court into an appellate court to re-evaluate the factual basis of the conviction. 1. The Court shall therefore confine itself to the question whether the sentence imposed was lawful and proper. **Whether the Sentence Warrants Interference** 1. Sentencing is an exercise of judicial discretion. A sentencing court must consider the seriousness of the offence, the circumstances of the offender, aggravating and mitigating factors, and the objectives of sentencing. 2. The applicable principles governing interference with sentence are well settled. 3. In **Wanjema v Republic [1971] EA 493**, the Court held that an appellate court should not interfere with sentence unless it is demonstrated that the trial court acted on wrong principles, overlooked material factors, considered irrelevant factors, or that the sentence is manifestly excessive or inadequate. 4. The Court of Appeal in **Bernard Kimani Gacheru v Republic [2002] eKLR** reaffirmed that sentencing is a matter of discretion for the trial court and interference is only justified where the discretion was improperly exercised. 5. Similarly, in **Shadrack Kipkoech Kogo v Republic [2006] eKLR**, the Court held that a superior court will only interfere with sentence where there is evidence of a wrong principle being applied or where the sentence is manifestly excessive. 6. These principles apply with equal force in revision proceedings. 7. The question therefore is not whether this Court would have imposed the same sentence, but whether the sentence was arrived at through a proper exercise of judicial discretion. **Whether the Trial Court Properly Exercised its Sentencing Discretion.** 1. Having considered the applicable legal principles, the Court now turns to examine whether the sentence imposed by the learned trial magistrate was proper and whether the applicant has demonstrated sufficient grounds for this Court to intervene. 2. It is not in dispute that the applicant pleaded guilty to the charge A plea of guilty is a significant factor in sentencing because it demonstrates acceptance of responsibility and saves judicial time and resources. The Judiciary Sentencing Policy Guidelines recognize a plea of guilty as a mitigating circumstance which ordinarily warrants consideration by a sentencing court. 3. The applicant also presented herself as a first offender. The absence of previous convictions is a relevant consideration in determining the appropriate sentence, particularly where the offender demonstrates remorse and willingness to reform. 4. The Court has considered the proceedings before the trial court. The record confirms that the applicant was given an opportunity to mitigate before sentence was imposed. However, the sentencing record does not demonstrate any meaningful engagement with the particular circumstances placed before the court or an analysis of whether a less restrictive sentence could adequately achieve the objectives of sentencing. 5. This Court emphasizes that mitigation is not an empty ritual. It is an important component of the sentencing process. A sentencing court is required to actively consider mitigating factors and demonstrate that they have been weighed alongside the seriousness of the offence. 6. In **State v Ocheing**, the Court observed that failure to consider material mitigating circumstances amounts to a misdirection in sentencing because it prevents the court from arriving at an individualized and proportionate sentence. 7. The principle of individualized sentencing has also been recognized in Kenyan sentencing jurisprudence. The court must consider not only the offence committed but also the offender before it. A sentence must be proportionate to the circumstances of both the offence and the offender. 8. In the present matter, the applicant placed before this Court evidence showing that she is a first offender, that she recently lost both her parents, and that she bears responsibility for a minor child who is still attending school and depends upon her for care and support. 9. The Court has considered the supporting documents annexed to the application, including the obituary booklets, burial permits and the minor’s birth certificate. The documents lend support to the applicant’s assertion that she occupies a significant caregiving role in the life of the child. **The Best Interests of the Child** 1. Article 53(2) of the Constitution provides: “***A child’s best interests are of paramount importance in every matter concerning the child.”*** 2. The constitutional command requires courts, whenever dealing with matters affecting children, to take into account the welfare and interests of the child. This principle applies even where the parent or caregiver before the court has committed an offence. 3. The Court is careful to state that parental responsibility cannot excuse criminal conduct. The existence of a child does not create immunity from lawful punishment. Courts must continue to impose sentences that uphold the rule of law and protect society. 4. However, sentencing is an individualized exercise. Where the consequences of a custodial sentence will substantially affect an innocent child, the Court must consider whether the legitimate objectives of punishment can be achieved through a less restrictive measure. 5. The welfare of the child is therefore not a defence to the offence but a relevant sentencing consideration. 6. The Court finds that the applicant’s circumstances required deeper consideration during sentencing, particularly because the applicant asserts that the minor child has no other person to provide care and support. **Proportionality of the Fine and Default Sentence** 1. The applicant further challenged the fine imposed on the basis that it was beyond her means and that the default imprisonment effectively converted the financial penalty into a custodial sentence. 2. The Court acknowledges that fines are legitimate sentencing tools and are often appropriate for less serious offences or where they can achieve deterrence without unnecessary incarceration. 3. However, a fine must remain proportionate. The imposition of a fine which an offender has no realistic ability to pay may defeat the rehabilitative objective of sentencing and disproportionately punish an offender based solely on economic circumstances. 4. The Sentencing Policy Guidelines emphasize that sentencing must be fair, proportionate and consistent with the circumstances of the offender. A sentence should not be excessive to the extent that it undermines the objective of rehabilitation. 5. The Court is not persuaded that the fine imposed was unlawful. Parliament has entrusted courts with discretion to impose fines as part of sentencing. However, the question remains whether, in this particular case, the sentence sufficiently reflected the applicant’s personal circumstances. **Balancing Deterrence and Rehabilitation** 1. The Court has also considered the respondent’s submissions regarding the seriousness and prevalence of offences involving unlawful manufacture of alcoholic drinks. 2. The Court agrees that such offences are serious. The manufacture of illicit alcoholic drinks presents significant risks to public health and safety. Courts must therefore impose sentences that communicate society’s condemnation of such conduct and deter others from engaging in similar activities. 3. Nevertheless, deterrence does not require that every offender receive the same punishment regardless of their circumstances. The sentencing process requires a careful balance between the interests of society and the circumstances of the individual offender. 1. In the present case, the applicant is not seeking to avoid accountability. She has accepted responsibility, expressed remorse and undertaken to comply with lawful conditions that may be imposed. 2. The Court is therefore persuaded that the question whether a non-custodial sentence would adequately achieve the purposes of sentencing requires further information regarding the applicant’s suitability. **Whether a Probation Report Should Be Ordered** 1. The applicant has urged the Court to substitute the sentence with probation or community service. While the Court has jurisdiction to revise sentence, it considers that an immediate substitution without the benefit of a professional assessment would be premature. 2. A Probation and Aftercare Service Report would provide the Court with objective information regarding the applicant’s social circumstances, family responsibilities, character, prospects of rehabilitation, community support and suitability for a non-custodial sentence. 3. The purpose of calling for such a report is not to grant the applicant automatic entitlement to probation or community service. Rather, it enables the Court to make a fair and informed sentencing determination. 4. The Court reiterates that a non-custodial sentence is a matter of judicial discretion and not a right available to every offender. The ultimate decision must take into account the seriousness of the offence, the objectives of sentencing and the interests of justice. 5. Having weighed all the competing considerations, this Court finds that although the sentence imposed by the trial court was lawful, the circumstances presented demonstrate that the sentencing discretion would benefit from further inquiry into the applicant’s suitability for a rehabilitative intervention. 6. The Court therefore finds merit in the application to the limited extent that a Probation and Aftercare Service Report shall be obtained before the final determination of the appropriate sentence. **Orders** * 1. The application for revision is allowed to the limited extent set out herein. 2. The sentence imposed by the subordinate court of a fine of Kshs.100,000/= or one (1) year imprisonment in default shall remain stayed pending further directions of this Court upon receipt of the Probation Report. 3. The County Probation Officer shall prepare and file a comprehensive Social Inquiry Report in respect of the applicant within 14 (14) days from the date hereof. 4. Upon filing of the report, the matter shall be placed before the Court for further directions. **Dated, Signed and Delivered Virtually at Eldoret this 24th day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**