[2016] KEHC 1563 (KLR)
The court held that the trial magistrate erred by imposing a custodial sentence without first considering the statutory option of a fine for a first offender under the Alcoholic Drinks Control Act. The Act's spirit and Section 62 provide for a fine as the primary punishment, with imprisonment only in default of...
Source-derived case information.
- Citation
- [2016] KEHC 1563 (KLR)
- Parties
- Appellant: Lucy Karimi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 18 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- RPV Wendoh
- Legal Topics
- Sentencing Discretion, Alcoholic Drinks Control, Plea of Guilty, First Offender, Option of Fine
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Karimi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred by imposing a custodial sentence without the option of a fine for a first offender convicted under the Alcoholic Drinks Control Act.
- 2 Whether the appellant's mitigation and the nature and quantity of the alcoholic drinks found should have influenced the sentence imposed.
Ratio Decidendi
The court held that the trial magistrate erred by imposing a custodial sentence without first considering the statutory option of a fine for a first offender under the Alcoholic Drinks Control Act. The Act's spirit and Section 62 provide for a fine as the primary punishment, with imprisonment only in default of payment. The appellant, having pleaded guilty and being a first offender, should have been given the option of a fine, especially considering the relatively small quantity and less serious nature of the alcoholic drinks involved. The court found the sentence harsh and not in line with the legislative intent, and therefore substituted the sentence with the period already served.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The sentence is substituted with the period already served.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO. 18 OF 2016
LUCY KARIMI ............... APPELANT
VERSUS
REPUBLIC ................ RESPONDENT
JUDGMENT
The appellant was charged with the offence of dealing in alcoholic drinks without a licence contrary to Section 7 (1) as read with Section62 of the Alcoholic Drinks Control Act No. 4 of 2010. The particulars of the charge were that on 8/5/2016 at Maua, in Igembe South, she was found in possession of 100 litres of muna and ½ litre of chang’aa without a licence.
When the appellant was arraigned before the Court on 9/5/2016, she pleaded guilty and was sentenced to serve a period of one year imprisonment. She filed an amended appeal on 4/7/2016.
At the hearing of the appeal, the appellants’ Counsel Mr. Mutembei abandoned all the grounds save for ground 7 in which the appellant states that the trial court erred in sentencing the appellant to custodial sentence without an option of a fine. Counsel urged that there was no evidence that the appellant had any previous convictions and merely based the sentence on the word of the Chief to the Probation Officer, that she was a notorious brewer. Counsel relied on the decisions of Ian Kabai Mburu v Rep CRC 211/2015, which facts were similar as this case and the court held that the court should have considered an option of fine. Counsel was also of the view that the court should have taken into account the quantity of and quality the alcoholic drink received.
Lastly, Counsel urged that the appellant’s mitigation was never considered.
Mr. Mulochi, Counsel for the State was not opposed to the appeal because the trial court should have considered the option of fine.
I have considered the submissions of Counsel and the decisions cited. There is no doubt that the appellant pleaded guilty to the offence and was convicted in her own plea. The court called for a probation Officer’s report. The Probation Officer reported that the Chief had indicated that the appellant was a notorious brewer of illicit brew in the locality and that therefore a non-custodial sentence would not act as deterrent. However, so far as the prosecution were concerned that the appellant was a first offender. Despite the recommendation of the Probation Officer, it is the Magistrate who has the discretion to consider which sentence to mete on the appellant. The Alcoholic Drinks Control Act provides the punishment to be meted out on an offender and the spirit of the Act seems to be that sentence will be in the form of fine and in default, imprisonment. Section 62 provides a general penalty of fine in default, imprisonment. The court should have considered that the appellant was found with an alcoholic drink called muna whose effects are not serious. She had only ½ litre of chang’aa. It is my view that the appellant should have been given an option of fine in default custodial sentence. I find that the court acted harshly and in error considering all the above factors.
In the end, I find merit in the appeal and allow it. The appellant was sentenced on 24/5/2016. So far, she has served 5 months imprisonment. This court will exercise its discretion and sentence the appellant to the term already served and I direct that she should be released forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED THIS 7TH DAY OF OCTOBER, 2016.
R.P.V. WENDOH
JUDGE
7/11/2016