[2004] KEHC 2732 (KLR)
The trial court imposed a sentence of 12 months imprisonment for an offence under Section 25(1) of the Traditional Liquor Act, which only allows for a maximum of 6 months imprisonment or a fine not exceeding KES 6,000 or both. The sentence was therefore illegal. The appellate court found that the trial magistrate...
Source-derived case information.
- Citation
- [2004] KEHC 2732 (KLR)
- Parties
- Appellant: Mutua Musyoki Mulu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 310 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence varied
- Legal Topics
- Sentencing Illegality, Plea of Guilty, Traditional Liquor Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutua Musyoki Mulu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was lawful under the Traditional Liquor Act.
- 2 Whether the trial court considered appropriate alternatives to custodial sentence.
Ratio Decidendi
The trial court imposed a sentence of 12 months imprisonment for an offence under Section 25(1) of the Traditional Liquor Act, which only allows for a maximum of 6 months imprisonment or a fine not exceeding KES 6,000 or both. The sentence was therefore illegal. The appellate court found that the trial magistrate failed to consider the statutory sentencing limits and alternatives such as a fine or non-custodial sentence, particularly given the appellant's plea of guilty and mitigation. The appellate court set aside the illegal sentence and substituted it with the period already served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed in part; sentence varied
Orders
- The sentence of 12 months imprisonment is set aside and substituted with the period already served (3 months).
- The appellant is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
APPELLATE SIDE
CRIMINAL APPEAL NO. 310 OF 2003
(From Original Conviction and Sentence in Criminal Case No. 1330 of 2003 of the Resident Magistrate’s Court at Makindu, R. K. Mibei Esq. on 21. 11. 2003
MUTUA MUSYOKI MULU ::::::::::::::::::::::: APPELLANT
VERSUS
REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
J U D G E M E N T
The appellant was arraigned before the Resident Magistrate’s Court Makindu on 21. 11. 2003 charged with offence of being in possession of traditional liquor C/sec. 25 (1) of the Traditional Liquor Act Cap 122 Laws of Kenya. He was alleged to have been found in possession of 245 litres of traditional liquor Karubu for sale without a permit. The appellant pleaded guilty to the offence and was convicted on his own plea of guilty. He was then sentenced to 12 months imprisonment. He is dissatisfied with the sentence. From the memorandum of appeal it is apparent that he is dissatisfied with the sentence claiming that it is excessive in the circumstances. It seems he has no problem with the conviction.
The plea was read to the appellant in the English/Kikamba languages to which he pleaded guilty. Facts were read out to him and the said karubu produced as an exhibit. Being the first day of plea I do not believe that a government chemist report would have been available. Besides the appellant has no quarrel with the plea.
He did not waste the court’s time and in mitigation he said that he had young children to care for. The Magistrate gave a deterrent sentence but I do find that the court should have considered getting a home report from the Community Service Officer or Probation Officer. Alternatively the court should have considered a non custodial sentence in the form of a fine. The appellant was charged under S. 25 (1) of the Traditional Liquor Act. The sentence provided under S. 25 (1) is a fine not exceeding 6,000/- or 6 months imprisonment or to both. The Magistrate therefore gave an` illegal sentence not provided by law. The appellant has been in prison as from 21. 11. 2003 a period of 3 months. The court will set aside the illegal sentence of 12 months imprisonment and substitute it with the period that the appellant has served which is 3 months imprisonment and he is set at liberty forthwith unless he is otherwise lawfully held.
Dated, read and delivered a Machakos this
day of ……………………. 2004.
R. V. WEND0H
JUDGE