https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6950

**REPUBLIC OK KENYA** **IN THE HIGH COURT OF KENYA** **AT KISII** **MISCELLANEOUS CRIMINAL REVISION APPLICATION NO. E020 0F 2026** **NAOMI NYANGACHI NELSON..............................................APPLICANT** **=VERSUS=** **REPUBLIC............................................................................RESPONDENT** **RULING** 1. This is a Criminal Revision Application, filed by the Applicant NAOMI NYANGACHI NELSON. Who was the Accused in KISII CMS COURT CRIMINAL CASE NO. E506 OF 2026; where she was charged and convicted of the offence of having been found in possession of illicit alcoholic drink, contrary to section 27(1) of the Alcoholic Drinks Control Act Cap 121 Laws of Kenya. That illicit alcoholic drink was chang’aa; and the facts are that the she was found with 120 litres of it. 2. She pleaded guilty to the charge. Upon which plea, she was convicted on her own plea of guilty, and sentenced imprisonment for one year, with an alternative of a fine of Ksh 300,000=. The sentence was imposed by Hon L.O KILENYET (Resident Magistrate), on 16th March 2026. 3. Aggrieved by that sentence, the Applicant filed this Application. The Application is supported by the Applicant’s Supporting Affidavit sworn on 16th March 2026, and is dated on even date. The application seeks the revision of the said sentence. On the ground that the sentence was is illegal, harsh, excessive and irregular; and also that it failed to take into consideration the Applicant’s mitigation and mitigating factors. 4. Which mitigating factors, the application has listed as follows: 5. *That the Applicant was a first offender;* 6. *That she was remorseful;* 7. *That she has financial constraints;* 8. *That at the time of the sentence, she had been recently discharged from hospital following a cessarian section procedure during delivery;and* 9. *That she has family responsibilities.* 10. Further that the trial court misapplied the law, and imposed a sentence that is disproportionate to the offence. 11. At the hearing, Mr Njeru for the DPP stated that the state was not opposing the Application. but only urging that the sentence may be reviewed under Section 35 of the CPC, provided it be within the law and reasonable. The Aplication was argued orally. At the hearing, Mr. Okenye the Applicant’s Advocate stated that the charge was that the Applicant was found in possession of 100 litres of chang’aa. Which is not accurate, as the Charge Sheet in the particulars of the offence stated that it was 120 litres. ***Analysis and determination*** 1. This is a revision Application involving this Court’s criminal revision jurisdiction. This jurisdiction is provided for in Article 165 (6) and (7) of the Kenya Constitution. As well as Section 362 of the Criminal Procedure Code (Cap 75 Laws of Kenya), as read with Section 364 of the same. 2. Under Section 362, the High Court has power to call and examine the record of any criminal proceedings before a surbordinate court, for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed; and as to the regularity of the proceedings. 3. The question for determination in this Application should therefore be as to the correctness, legality or propriety of the impugned sentence. Section 27 (4) of the Alcoholic Drinks Act, which is the penal section, provides as follows: **“A person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or both.** 1. I do not find the impugned sentence illegal as it is within the sentence prescribed in Section 27 (4) of the said Act. Which is a fine not exceeding two million or imprisonment for 5 years, or both. For this Court to intervene by way of revision on sentence, the sentence ought to for instance be outside this scope. Not merely that the Applicant considers the sentence to be excessive or disproportionate. That is for the Appellate jurisdiction, and not the revisionary jurisdiction. 2. This Court cannot allow an Applicant to disguise as a revision Application, what is supposed to be an Appeal. That will be an Appeal through the backdoor. The Applicant’s grievances should therefore be canvassed by way of appeal and not revision. 3. Notably, while the Application has merely alleged that the impugned sentence is illegal and unlawful, it has not explained the unlawfulness and illegality. That was necessary. 4. In the end, this Application fails and is hereby dismissed accordingly. **DATED** and **DELIVERED** at **KISII** on this 14th day of May 2026. **PROF (DR) NIXON SIFUNA** **JUDGE**