[2022] KEHC 10765 (KLR)

Mwiti v Republic (Miscellaneous Criminal Application E010 of 2022) [2022] KEHC 10765 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10765 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Criminal Application E010 of 2022

EM Muriithi, J

June 9, 2022

Between

Joshua Mwiti

Applicant

and

Republic

Respondent

Ruling

The revision Application 1. This is a ruling on an application for revision from the orders of the trial court on conviction and sentence of the applicant for various offences in Isiolo Chief Magistrate’s Court Criminal Case No. E071 of 2022 delivered on 10/2/2022 by Hon. E. Ngigi, PM. Specifically, the applicant by Notice of Motion dated 3rd March 2022 filed by M/S Mutuma Gichuru Advocates sought an order –“That this honourable court do exercise its discretion in revision of the ruling by the Hon. Principal Magistrate E. Ngigi made on the 10th February 2022 wherein the said magistrate issued sentences in contravention of the prevailing law.”

2. The particulars of the offences were set out in the Charge Sheet dated 10/2/2022 as follows:“Count IBeing in possession of illegal alcoholic Drinks contrary to section 27)(1) (b) as read with sub-section 4 of the Alcoholic Drinks Control Act No. 4 of 2006. Particulars of the Offence: Joshua Mwiti: On the 9th day of February 2022 at Bulapesa area in Waso location within Isiolo North sub –County in Isiolo County was found in possession of illegal alcoholic drink namely Marwa to wit 150 litres at his bar namely The Place which is not conform with the requirements of the Act in contravention of the said Act.Count IIBeing in possession of uncustomised goods contrary to section 200 (a) (III) as read with section 210 and 213 of the east African Community Customs Management Act 2004. Particulars of the Offence: On the 9th day of February 2022 at around 11,00hrs at Miti ya Makaa area in Bulapesa Sub-location, Waso Location in Isiolo North Sub-County within Isiolo County, was found in possession of 306 packets of pure export Supermatch king size cigarettes valued at 30,000/- in contravention of the said East African Community Custom Management Act of 2014. Count IIIUsing Plastic Flat bags and Plastic carrier bags contrary to a measure Banning use of Plastic Flat bags and plastic carrier bags prescribed under Gazette Notice No. 2356 and 2334 as read with section 140 (b) of the Environmental Management and Coordination Act No. 5 of 2015 cap 387 Laws of Kenya.Particulars fo the offence: Joshua Mwiti: On the 9th day of February 2022 at around 11. 00 hours at Miti ya Makaa area in Bulapesa sub-location, Waso Location in Isiolo North Sub-County within Isiolo County at the unnamed shop knowingly and unlawfully was found using plastic flat bags and plastic carrier bags approximately 10 packets of the same having been banned.”

Conviction and sentence 3. The accused was convicted upon own plea of guilty to three counts of various offences and respectively sentenced, as follows:“Taking into account the penalties provided for by the various applicable Acts as well as the foregoing considerations, the accused person for count 1 shall pay a fine of 100,000 in default to serve one year imprisonment. For Count 2, the accused to pay a fine of 15,000 in default to serve 2 months’ imprisonment. For count 3, the accused to pay a fine of 2,000,000/= in default to serve 1 year imprisonment. The brew and the bags be destroyed upon expiry of 14 days and the unaccustomed goods be forfeited by the K. R. A.Hon. E. NgigiPrincipal Magistrate10/2/2022”

4. The applicant’s application of revision is based on facts set out in his supporting Affidavit sworn on 3rd march 2022 as follows:“1. ThatI am the accused person in the concluded criminal case No. E 071 of2022 at the Chief Magistrates Court at Isiolo being well versed with the issues at hand thus competent to swear this affidavit.2. Thaton 10th February 2022 I pleaded guilty to all counts levied against me while i was under the mistaken belief that i would be acquitted of all charges since they were minor offences of creating disturbance within the public.3. Thati was not represented in the trial that lasted a span of 10 minutes or so and the Next thing I realised was when I was being told that I have to pay fines of Ksh.100,000, Ksh.15,000 and Ksh. 2,000,000/= for the alleged offences.4. ThatI have since outsourced the services of the advocates on record who have advised me which advise I verily believe to be true that my chances are on revision of the sentence meted against me as the same is harsh in the circumstances, extremely high and against the established tenents of the law.5. Thatindeed I run a licensed bar and all the drinks there-in conform to standards and requirements of the law. All through-out the proceedings I was never asked to defend myself on the irregular count as charged.6. Thateven that be as it may, Count 1 as it stands is defective and thus not proper for the learned trial magistrate to find a sentence in its favor.7. ThatCount two, the sentence passed is contrary to Section 200(d)(iii) of EACCMA which requires that upon conviction an accused person should be sentenced to a fine equal to 50% of the dutiable value thus the fine imposed was unfounded in law thus illegal. Attached hereto is a copy of the charge sheet, the trial courts proceedings and the judgment thereto marked ‘JM1"8. ThatCount Three, I was fined Ksh.2,000,000 or serve one year in prison a sentence that is unfounded as no such products were found in my possession and/or were they produced in court this is against the court record that shows they were produced.9. ThatI swear this affidavit in support of my application for revision as the said sentences passed against me were passed in my ignorance of what offence i had committed and that further they are excessively punitive for the wrongs alluded to me despite my innocence.”

Determination Failure to follow the plea taking procedure 5. Upon considering this application for revision the Court has observed that the record does disclose scrupulous compliance with the procedure for plea taking, see KBT HCCRA NO. 138 of2017Chepsergon Kennedy & Paul Rotichv. R of 18th April 2017 with regard to guilty plea taking.

6. The accused accepted the following facts as true:“Prosecution Counsel:The facts are that on 9/2/2022 at Bula Pesa in Waso location, in Isiolo County, the Chief, Assistant County Commissioner an Police were in patrol on operation against illicit brewers. They went to the accused bar known as The Place. They had found the accused selling 150 liters of Marwa. The accused had also in his possession Super Match Kingsize and which is purely for export and valued at 30,000/=. The accused was also found with plastic bags the have since been banned. The bags were 10. I wish to produce the 150 liters of Marwa in two drums. (PEX la-b) Super Match 306 pieces and 10 packets of Farasi plastic bags. (PEX3).”

7. The DPP contends that the offence charged under Count II does not exist, and the applicant should have been charged for the offence under section 200 (d) (iii) of the East African Community Customs Management Act of 2004.

8. The accused was properly convicted ion his own plea of guilty in Counts I and III. The conviction for the non-existent offence charged under Count II will be quashed and sentence set aside.

Excessive sentence 9. This court does not feel called to make a determination as to whether the mandatory minimum sentences prescribed for the offence under Count III by section 140 of the EACMA of “fine of not less than one year but not more than four years or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment”, having not been served with full arguments thereon.

10. The court, however, accept the principle put forth by the DPP on the principles guiding appellate court’s interference with the sentencing discretion of the trial court, citing among others S. v Malgas (2001) SACR 469 (SCA) in similar tenor with our Wanjema v. R (1971) EA 493, 494.

11. The sentence of a fine Ksh.2,000,000/-imposed on the accused on the third count appears excessive having regard to the fact that the accused was found in possession of only ten (10) packets of plastic bags. However, as the court has not been served with an argument on the minimum mandatory of section 140 of the Environment and Management and Coordination Act, 2015 it is not appropriate to make a determination.

Orders 12. Accordingly, for the reasons set out above, the Court, in exercise of the revision powers under section 364 of the Criminal Procedure Code as read with section 354 (3) thereof, revises the order of the trial court made on 10/2/2022, and quashes and sets aside, respectively, the conviction and sentence of fine of Ksh.15,000/- in default 2 months in Count II as the offence charged therein does not exist.

13. The applicant is at liberty to move this court as a constitutional court on the constitutionality of the penalties in section 140 of the Environment and Management and Coordination Act, 2015 when full argument on the matter shall be made and the issue determined.Order Accordingly.

DATED AND DELIVERED ON 9TH DAY OF JUNE, 2022EDWARD M. MURIITHIJUDGEAppearancesMr. Ashaba, Instructed by M/S Mutuma Gichuru & CO. Advocates for the Applicant.Ms. V. Kitoto, Principal Prosecution Counsel for the DPP.