[2015] KEHC 5513 (KLR)
The court found that the conviction for possession of Kangara was unlawful because Kangara is not classified as an alcoholic drink under Section 2 of the Alcoholic Drinks Control Act, and there is no offence for possession of a substance used for distilling chang'aa under the Act. Consequently, the conviction and...
Source-derived case information.
- Citation
- [2015] KEHC 5513 (KLR)
- Parties
- Applicant: Mercy Chepkwony; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 5 of 2015
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Conviction and sentence on count 1 quashed; conviction on count 2 upheld but sentence reduced to time served; applicant to be released unless otherwise lawfully held.
- Judges
- HI Ong'udi
- Legal Topics
- Alcoholic Drinks Control, Sentencing Principles, Possession of Illicit Liquor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Chepkwony
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the conviction for being in possession of Kangara was proper under the Alcoholic Drinks Control Act.
- 2 Whether the sentence imposed for possession of chang'aa was excessive for a first offender.
Ratio Decidendi
The court found that the conviction for possession of Kangara was unlawful because Kangara is not classified as an alcoholic drink under Section 2 of the Alcoholic Drinks Control Act, and there is no offence for possession of a substance used for distilling chang'aa under the Act. Consequently, the conviction and sentence on count 1 were quashed. For count 2, the court held that although the conviction for possession of chang'aa was proper, the sentence of six months' imprisonment without the option of a fine was too harsh for a first offender who had already served over two months. The sentence was set aside and substituted with a sentence equivalent to the period already served, and the...
Court Disposition
Conviction and sentence on count 1 quashed; conviction on count 2 upheld but sentence reduced to time served; applicant to be released unless otherwise lawfully held.
Orders
- Conviction and sentence on count 1 (possession of Kangara) quashed and set aside.
- Conviction on count 2 (possession of chang'aa) upheld.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CRIMINAL REVISION NO. 5 OF 2015
MERCY CHEPKWONY................…..............................APPLICANT
VERSUS
REPUBLIC ….............................................................RESPONDENT
(Arising from Bomet Resident Magistrate's Court
Criminal Case No. 119 of 2015)
R U L I N G
This file was called for following my visit to the Kericho G.K. Women's Prison on 26th March, 2015. Upon perusal of the record I note that the applicant was convicted of two offences namely;
Being in possession of Kangara and sentenced to one(1) year imprisonment.
Being in possession of chang'aa and sentenced to six(6) months imprisonment.
The two offences were brought underSection 27(1) (2) as read with Section 27(4)of the Alcoholic Drinks Control Act.
First of all there is no offence under the said Act known as being in possession of a substance used for distilling chang'aa. Further, Kangara is not an alcoholic drink under Section 2 of the Act. She should not have pleaded to count 1. I therefore quash the conviction and set aside the sentence on count 1.
For count 2 – the conviction is upheld. She was sentenced to six(6) months imprisonment with no option of a fine yet she was a first offender. I find that to be too harsh. She has served two(2) months and one(1) week.
I set aside the sentence and substitute it with a sentence of the period already served. She will be released forthwith unless lawfully held under a separate warrant.
Dated and signed this 10th day of April, 2015
H.I. ONG'UDI
JUDGE