[2004] KEHC 1020 (KLR)
The High Court found that the sentence of 19 months imprisonment for possession of 1/2 litre of Chang'aa was manifestly harsh and excessive, particularly as the appellant was a first offender and had pleaded guilty. The statutory penalty under Section 4(1) of the Chang'aa Prohibition Act provides for a fine of Kshs....
Source-derived case information.
- Citation
- [2004] KEHC 1020 (KLR)
- Parties
- Appellant: Catherine Ndindi Peter; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 165 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- RPV Wendoh
- Legal Topics
- Sentencing Principles, Possession of Illicit Liquor, Changaa Prohibition Act, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Ndindi Peter
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 19 months imprisonment for possession of 1/2 litre of Chang'aa was manifestly harsh and excessive.
- 2 Whether the magistrate erred in failing to consider alternative sentences such as a fine or community service.
Ratio Decidendi
The High Court found that the sentence of 19 months imprisonment for possession of 1/2 litre of Chang'aa was manifestly harsh and excessive, particularly as the appellant was a first offender and had pleaded guilty. The statutory penalty under Section 4(1) of the Chang'aa Prohibition Act provides for a fine of Kshs. 10,000 or imprisonment not exceeding two years, and the magistrate should have considered imposing a fine or community service. The period already served in jail was deemed sufficient punishment. Accordingly, the sentence of 19 months imprisonment was set aside and substituted with the period already served, and the appellant was ordered to be released unless otherwise...
Court Disposition
appeal allowed
Orders
- The sentence of 19 months imprisonment is set aside and substituted with the period already served.
- The appellant is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
APPELLATE SIDE
HIGH COURT CRIMINAL APPEAL 165 OF 2004
(From Original Conviction(s) and Sentence(s) in Criminal Case No 1726 of 2004 of
the Resident Magistrate’s Court at Makindu R.K. Mibei ( Es q.) on 2/11/04) CATHERINE NDINDI PETER ::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
J U D G E M E N T
The appellant Morris Kituku was convicted of the offence of possessing Chang’aa Contrary to Section 3 (1) of the Chang’aa Prohibition Act Cap 70 Laws of Kenya. He was sentenced to 19 months in jail. He is aggrieved by the sentence and hence this appeal.
The state conceded the appeal and asked court to consider other options of sentences. The appellant pleaded guilty to the offence. There were no records of previous convictions. The amount of Chang’aa that the appellant possessed was 1/2 litre. Under Section 4 (1) Chang’aa Prohibition Act, the penalty for such offence is a fine of Kshs. 10,000/= or jail term not exceeding two years. I do agree that the sentence in the circumstances was manifestly harsh and excessive. The magistrate should have considered fining the appellant or sending him to perform Community Service. The appellant has been in jail since 14/6/04 which is excessive already. The court sets aside the sentence of 19 months imprisonment and substitutes it with the jail term so far served. The appellant is set at liberty forthwith unless otherwise lawfully held.
Dated at Machakos this 16th day of December 2004
R.V. WENDOH JUDGE