[2019] KEHC 1583 (KLR)
The conviction was quashed and the sentence set aside because the charge and particulars as drafted failed to disclose an offence under section 7(1)(b) of the Alcoholic Drink Control Act. The law criminalizes possession of alcoholic drink only if it is for sale, disposal, or dealing, none of which were specified in...
Source-derived case information.
- Citation
- [2019] KEHC 1583 (KLR)
- Parties
- Appellant: Pricilla Mweni Omondi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 16 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- KW Kiarie
- Legal Topics
- Alcoholic Drink Control, Defective Charge, Sentencing Principles, Possession of Alcohol, Mitigation, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Pricilla Mweni Omondi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge and particulars as drafted disclosed an offence under section 7(1)(b) of the Alcoholic Drink Control Act.
- 2 Whether the sentence imposed was excessive and failed to consider mitigation or alternative of a fine.
- 3 Whether the trial court erred by not inquiring into the appellant's previous record before sentencing.
Ratio Decidendi
The conviction was quashed and the sentence set aside because the charge and particulars as drafted failed to disclose an offence under section 7(1)(b) of the Alcoholic Drink Control Act. The law criminalizes possession of alcoholic drink only if it is for sale, disposal, or dealing, none of which were specified in the charge. This defect was fatal to the prosecution case, rendering the conviction unsustainable. Additionally, the trial court failed to inquire into the appellant’s previous record before sentencing, which is a necessary step in the sentencing process. The appellate court, therefore, found it appropriate to allow the appeal, quash the conviction, and set aside the sentence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction of the appellant by the trial magistrate is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CRIMINAL APPEAL NO. 16 OF 2019
PRICILLA MWENI OMONDI...........................................APPELLANT
VERSUS
REPUBLIC.........................................................................RESPONDENT
(From the original conviction and sentence in Criminal case No. 1450 of 2019 of the
Chief Magistrate’s Court at Busia by Hon. Lucy Ambasi – Chief Magistrate)
JUDGMENT
1. Pricilla Mweni Omondi, the appellant herein, was convicted for the offence of being in possession of alcoholic drink without a licence contrary to section 7(1) (b) of the Alcoholic Drink Control Act No.4 of 2010.
2. The particulars of the offences were that on 17th July 2019 atEmagombe village, inButulasub County of Busia County, was found in possession of 7 litres of chang’aa without a licence.
3. The appellant was sentenced to serve six months’ imprisonment. She has appealed against both conviction and sentence.
4. The appellant was represented by Mr. Oye Ashioya, Advocate. She raised three grounds of appeal as follows:
a) That the learned trial magistrate erred in law and fact in sentencing her to six months’ imprisonment without an alternative of a fine.
b) That the learned trial magistrate erred in law and fact in passing an excessive sentence.
c) That the learned trial magistrate erred in law and fact in not considering her mitigation.
5. The appeal was opposed by the state through Mr. Gacharia, learned counsel.
6. The facts of the prosecution case were briefly as follows:
The appellant was arrested in possession of 7 liters of chang’aa. When she was taken to court she pleaded that the chang’aa was hers.
7. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.
8. Section 7 (1) (b) of the Alcoholic Drink Control Act No.4 of 2010 provides as follows:
No person shall—
(b) sell, dispose of, or deal with;
(c) …
(d) …
any alcoholic drink except under and in accordance with a licence issued under this Act.
The mere possession of chang’aa is not an offence. It becomes an offence if the same is for sale, disposal or if one deals with it. The charge and the particulars were therefore defective for failure to include ingredients that make the possession an offence. This defect was fatal to the prosecution case.
9. Section 62 of the Alcoholic Drink Control Act No.4 of 2010 provides:
Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.
The sentence meted out has been criticized as harsh. I notice that the learned trial magistrate proceeded to pronounce a sentence without enquiring whether the appellant had a previous record or not. The response by the prosecution would have guided the court to mete out an appropriate sentence. This is an important step that cannot be skipped in the interest of justice. Had the charge been correctly drafted, I would have interfered with the trial magistrate’s sentence.
10. Due to the erroneous drafting of the charge and the particulars I will allow the appeal. Consequently the conviction of the appellant by the learned trial magistrate is quashed and the sentence set aside. The appellant was out on bond pending appeal. The surety is accordingly discharged.
DELIVEREDandSIGNEDatBUSIA this 11th dayof December, 2019.
KIARIE WAWERU KIARIE
JUDGE