[2005] KEHC 3139 (KLR)
The court found that, given the small quantity of chang’aa (200 millilitres) and the fact that the appellant had been in custody since 7th January 2005, the sentence of two years’ imprisonment was excessive. The court also considered the prosecution’s statement that the appellant was a first offender. Balancing...
Source-derived case information.
- Citation
- [2005] KEHC 3139 (KLR)
- Parties
- Appellant: Justine Mwakale; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 7 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to secure immediate release; appellant to be released forthwith unless otherwise lawfully held
- Legal Topics
- Possession of Illicit Liquor, Sentencing Principles, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justine Mwakale
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for possession of chang’aa was excessive given the circumstances.
- 2 Whether the appellant’s status as a first offender and the quantity of chang’aa found justified a reduction of sentence.
Ratio Decidendi
The court found that, given the small quantity of chang’aa (200 millilitres) and the fact that the appellant had been in custody since 7th January 2005, the sentence of two years’ imprisonment was excessive. The court also considered the prosecution’s statement that the appellant was a first offender. Balancing these factors, the court held that the time already served constituted sufficient punishment and ordered the appellant’s immediate release unless otherwise lawfully held.
Court Disposition
sentence reduced to secure immediate release; appellant to be released forthwith unless otherwise lawfully held
Orders
- The appellant’s sentence is reduced to the period already served.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
5 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE Criminal Appeal 7 of 2005 (From Original sentence and in Criminal Case No. 452 of 2004 of the Resident Magistrate’s Court at Wundanyi) ORIGINAL CASE NO. 452/2004 JUSTINE MWAKALE…………………………………………… APPELLANT VERSUS REPUBLIC………………………….……………………………RESPONDENT JUDGMENT The Appellant was charged with the offence of being in possession of chang’aa contrary to section 3(1) as read with Section 4(2) of the Chang’aa Prohibition Act No. 9 of 1980. The particulars of the offence were that on 30th day of December 2004 at Mwatate Location in Taita- Taveta District within Coast Province the Appellant was found in possession of 200 mililitres of chang’aa.
Upon conviction of his own plea of guilty the appellant was sentenced to two years imprisonment. This is because the probation officer did not recommend a non-custodial sentence as the appellant is a habitual brewer. The prosecution however stated that he was a first offender.
Given the amount of the prohibited brew the appellant was found with and the fact that he has been in prison since 7th January 2005 I think he has been punished enough. In the circumstances,I reduce his sentence to the extent that will secure his immediate release and order that the Appellant be released forthwith unless otherwise lawfully held.
DATED and delivered this 18th day of October 2005.
D. K. MARAGA JUDGE