[2015] KEHC 1789 (KLR)
The trial court imposed a sentence of one year imprisonment on each count without the option of a fine, contrary to Section 31(3) of the Alcoholic Drinks Control Act, which prescribes a maximum penalty of a fine of KES 50,000 or six months imprisonment or both. The High Court found the sentence unlawful and...
Source-derived case information.
- Citation
- [2015] KEHC 1789 (KLR)
- Parties
- Appellant: Mary Njeri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 69 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- CW Meoli
- Legal Topics
- Sentencing Illegality, Alcoholic Drinks Control, Plea of Guilt, Mitigation, Possession of Substandard Goods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Njeri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court exceeded the statutory maximum under the Alcoholic Drinks Control Act.
- 2 Whether the appellant's mitigation was properly considered by the trial court.
- 3 Whether the appellant was entitled to a fine in lieu of imprisonment under the applicable law.
Ratio Decidendi
The trial court imposed a sentence of one year imprisonment on each count without the option of a fine, contrary to Section 31(3) of the Alcoholic Drinks Control Act, which prescribes a maximum penalty of a fine of KES 50,000 or six months imprisonment or both. The High Court found the sentence unlawful and substituted it with a fine of KES 20,000 (or four months imprisonment in default) on the first count and KES 30,000 (or four months imprisonment in default) on the second count. The court also noted that the appellant's failure to present full mitigation at the trial stage could not be used to fault the sentencing court, but the illegality of the sentence was dispositive.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of the lower court in both counts is set aside.
- The appellant is to pay a fine of KES 20,000 on the first count, in default four months imprisonment.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
CRIMINAL APPEAL NO. 69 OF 2015
(Being an Appeal from original Conviction and Sentencing in the Chief Magistrate’s Court Naivasha Criminal Case 2015 of 2014 by, S. Muchungi – RM)
MARY NJERI…………………………………………APPELLANT
-VERSUS-
REPUBLIC……………………………………………RESPONDENT
J U D G M E N T
This appeal emanates from the conviction and sentence based on the Appellant’s plea of guilt in Criminal Case Number 2051 of 2014. Therein, the Appellant was charged with two counts of Being in possession of sub-standard liquor Contrary to Section 31 (2) as read with Section 31 (3) of the Alcoholic Drinks Control Act.
The particulars state that the Appellant had in her possession on 7th November, 2014 at Karagita Naivasha, 30 litres of Chang’aa in count 1 and 600 litres of Busaain count 2, which did not conform to the requirements of the Act in respect of packing, labelling and standardizing.
The court sentenced the Appellant to one year imprisonment on each count. This sentence is the subject of her appeal to this court, titled “Petition of Appeal by Mitigation” (sic).
The Appellant raised her personal circumstances as a single mother of three children, all school going, one of them handicapped as mitigatory factors. She had been released on bail pending appeal.
The Director of Public Prosecutions through Mr. Koima did not oppose the appeal, terming the sentence illegal as it went beyond the prescribed punishments.
I have perused the lower court record. The Appellant was given a chance to address the court in mitigation during plea. She merely asked for forgiveness, withholding the personal circumstances she now pleads in much detail before this court. An Appellant who fails to mitigate effectively before the trial court cannot blame the sentencing court.
In this case, the Appellant had in her possession a large amount of substandard liquor. However, no previous convictions were proved against her. The sentence of 1 year imprisonment without the option of a fine was unlawful. Under the Section 31 (3) of the Act the maximum sentence provided for the offences for which she was convicted is a fine of Shs. 50,000/= or six months imprisonment in default, or both.
I do therefore set aside the sentence of the lower court in both counts and substitute therefor a fine of Shs 20,000/= in default 4 months imprisonment on the first count, and a fine of Shs 30,000/= in default 4 months imprisonment, on the second count.
Delivered and Signed at Naivasha this 23rdday of October, 2015.
In presence of:
State Counsel : Ms Waweru
For Appellant : N/A
Court Clerk : Steven
Appellant : Present
C. MEOLI
JUDGE