[2017] KEHC 1596 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CRIMINAL APPEAL NO.86 OF 2017

(FORMERLY NKR CR.A.20/16)

(Appeal Originating from Nyahururu CM’s Court

Cr. No. 24 of 2015 by: Hon. A.P. Ndege – S.R.M.)

PURITY NJAMBI NJOROGE..................................APPELLANT

- V E R S U S -

REPUBLIC............................................................RESPONDENT

J U D G M E N T

The appellant Purity Njambi Njoroge pleaded guilty and was convicted for the following charges by Hon. A.P. Ndege SRM Nyahururu.

Count 1: Contravening Alcoholic Drinks Requirements Contrary to Section 27(a)(b) as read with Section 27(4) of the Alcoholic Drinks Control Act No.4 of 2010.

The particulars of the charge are that on 10/9/2015 at Gatirima Village in Laikipia County, was found in possession of fermented Kangara to wit 200 litres packed in two 100 litre plastic containers which does not conform to the requirements of the Kenya Bureau of Standards (KEBS).

Count II: Contravening Alcoholic Drinks Requirement Contrary to Section 27(a)(b) as read with Section 27(4) of the Alcoholic Drinks Control Act No.4 of 2010.

The particulars of the charge are that on 16/9/2015 at Gatirima Village within Laikipia County was found in possession of chang’aa to wit 1 litre packed in 3 litre plastic container instead of glass container.

The appellant was convicted on her own plea and sentenced as follows:

Count I: Kshs.300,000/= in default 2 years imprisonment;

Count II: Kshs.1,500/= in default 1 month imprisonment

The sentences were ordered to run concurrently.

Aggrieved by both conviction and sentence, the appellant lodged this appeal through the firm of Waichungo Advocate citing the following grounds:

(1) That the trial magistrate erred in law in convicting the appellant on an equivocal plea of guilty;

(2) That the trial magistrate erred in failing to find that the facts read to accused in both counts did not disclose an offence known in law;

(3) That the learned magistrate erred in convicting the appellant on a defective charge;

(4) That the court erred in failing to find that the prosecution did not produce documentary evidence to wit the Government Analyst report;

(5) That the trial magistrate erred by passing an excessive sentence in count I and disregarding the appellant’s mitigation.

The appellant therefore prays that this court do quash the conviction and set aside the sentence.

Learned counsel,Mr. Waichungo appeared for the appellant whereas the State was represented by Mr. Mutembei.

At the hearing of the appeal, Mr. Waichungo urged that the appellant was convicted on a non-existent offence because it was alleged that he was found in possession of Kangara, which is not one of the drinks classified under section 2 of the Alcoholic Drinks Act as alcohol; that Kangara is a substance used in processing of chang’aa but has not been criminalized under the Act; he further argued that count 1 is defective and the plea cannot be sustained on it; that the plea was not unequivocal because the prosecution did not produce a Government Analyst Report under Section 77(1) of the Evidence Act to confirm whether the substance found with the appellant was that envisaged under the Act; that the substance must contain 1½ percent of alcohol by volume to be classified as alcohol and only a Government analyst could have done that. Counsel relied on the case of Hilda Atieno v Republic CRA.104/2015 and urged the court to find that the sentence was excessive.

Mr. Mutembei opposed the appeal and argued that the plea was proper and taken in accordance with the case of Adan v Republic (1973) CA 445 and that the prosecutor produced 200 litres of Kangara and chang’aa; that the charge was read to the appellant, she pleaded guilty and was convicted. Lastly, counsel was of the view that it was unnecessary to produce the Government Analyst Report as the appellant admitted the facts to be true.

When the appellant was arraigned before the court on 17/9/2015, the two charges were read to her and she replied in Kiswahili:

Count 1 – ‘Ndiyo’

Count II – ‘Ndiyo’

A plea of guilty was entered against the appellant and the prosecution was invited to state the facts which was done and the 200 litres of Kangara and 3 litres of Chang’aa were produced as exhibits. The appellant went on to reply “ni kweli” when asked whether the facts were correct. The appellant was then convicted on her on plea on both counts; she gave her mitigation and the sentence was handed down on her.

Section 348 of the Criminal Procedure Code bars the filing of an appeal where an accused has pleaded guilty. The section provides as follows:

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”

In the case of Olel v Republic (1989) KLR 444 (CRA.417/1987) the Court of Appeal held as follows:

“Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code does not merely limit the right of Appeal in such cases but bars it completely;”

By dint of Section 348 and the above cited case, the appellant is barred from challenging her conviction and her only recourse is to challenge the length and or legality of the sentence imposed on her.

However, where the court finds that a plea was not unequivocal, then it will intervene. See Wandete Daniel Munyoki v Republic CRA.56/2013 (Malindi). The court has to consider whether or not the plea as taken was unequivocal.

The appellant was charged under Section 27(a)(b) as read with Section 27 (4) of the Alcoholic Drinks Control Act Section 27 1(a) and (b) provide as follows:

“Section 27 conformity with requirements:

(1) No person shall:

(a) Manufacture, import or distribute or

(b) Possess an alcoholic drink that does not conform with the requirements of the Act.

(2) Subsection (1) shall not apply to a person who—

(a) is authorized under this Act to be in possession of the alcoholic drink; or

(b) has possession of the alcoholic drink in a premises licensed under this Act

(3) The manufacture or distillation of all spirituous liquor prior to this Act referred to as Chang’aa shall conform to the prescribed standards or the requirements of this Act

(4) 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 to both.

I must point out that Section 27(a) & (b) does not exist under the Act. But from the manner in which the charge was couched and the particulars, I believe the charge was meant to be brought under Section 27(1)(a) and (b) of the said Act. Section 382 of the Criminal Procedure Code provides that the court’s decision or sentence shall not be reversed or altered due to an error or irregularity in the charge. The section reads as follows:

Section 382 of the Criminal Procedure Code:

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

The charge is therefore cured by the above provision. If the facts do not support the charge, then a charge would be deemed to be defective. Mr. Waichungo urged that the charge is defective because Kangara is not one of the drinks envisaged under section 2 of the Act.

Section 2 provides the definition of “Alcoholic drinks” as follows:

“Alcoholic drink includes alcohol, spirit, wine, beer, traditional alcohol drink, and any one or more of such varieties containing one-half of one percent or more of alcohol by volume, including mixed alcoholic drinks and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer and capable of being consumed by a human being.”

Section 27 of the Act refers to either possession, manufacture, distribution or importation of alcoholic drinks; the appellant was alleged to have been found in possession of 200 litres of Kangara: In Section 2 of the Act that defines Alcoholic Drinks does not include ‘Kangara’: In the decision cited by Mr. Waichungo Advocate; Hilda Atieno v Republic CRA.104/2015 (Siaya). J. Makau adopted the findings of J. Ong’udi in CRA.3/2015 (..pg.6. ) Gladys Chemtai v Republic where that court observed that Kangara is not an alcoholic drink but a substance used in distilling chang’aa which is an alcoholic drink. Whatever ‘kangara’ is, it is only the Government Analyst who would have determined whether it meets the requirement of what an alcoholic drink is – that it must contain one 1½ per cent or more of alcohol by volume. Without the Government Analyst report, this court cannot ascertain the contents of the 200 litres found with the appellant.

Once the appellant intimated that she intended to plead guilty the court should have deferred the plea to await the results from the Government Analyst to ascertain the contents of the substance found with the appellant.

Besides, if indeed Kangara is not an alcoholic drink as held in the above cited cases, then it means that the charge was defective and could not be cured by Section 382 of the Criminal Procedure Code.

The case of Adan v Republic (1973) EA 445 though decided over 20 years ago, is still a good guide as to the manner in which a plea should be taken. The court held as follows:

“(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language which he understands;

(ii) the accused’s own words should be recorded and, if they are an admission, a plea of guilty should be recorded;

(iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts, or to add any relevant facts;

(iv) if the accused does not agree the facts or raises any question of his guilt his reply must be recorded and change of plea entered; and

(v) if there is no change of plea a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded.”

In the instant case, when the charge was read to the appellant, she merely said ‘ndiyo’. In Paul Irungu Maina HCRA.1209/2007 (NKU) the court held that the word “it is true” standing on its own, does not constitute a plea of guilty. The facts were then read to the appellant but they are very vague because the facts did not disclose the nature of the offence, the ingredients of the offence and whether it conforms to the requirements of Section 27 of the Alcoholic Drinks Act.

After these vague facts were read to the appellant, she replied “ni kweli”. Clearly, the appellant did not understand what she pleaded guilty to.

As regards count II, the appellant was charged under Section 27(a)(b) as read with Section 27(4). The facts disclosed that the appellant was in possession of 1 litre of chang’aa. As earlier noted, Section 27(a)(b) does not exist in the Act and may be the charge was meant to be under Section 27(1)(a) and (b).

The said substance produced in court as one litre of chang’aa was never taken to the Government Analyst to ascertain whether it is an alcoholic drink as envisaged under 2 of the Alcoholic Drinks Act or not i.e. containing “one half of one percent or more of alcohol by volume.” The liquid could have been water or anything else. I equally find the charge to have been defective and the plea was unequivocal because the facts did not support the charge.

The appellant was sentenced to pay a fine of Kshs.300,000/= in default 2 years imprisonment on count 1 and Kshs.1,500/= in default 1 month imprisonment on Count II. The appellant was treated as a first offender. She had pleaded guilty to the charge. In her mitigation she said that she was widowed and had children. Before passing sentence, the trial court should have called for a pre-sentence report to aid the court in making the appropriate sentence. Kshs.300,000/= is not a small amount of money and is out of reach of many Kenyans. In my view, the sentence was excessive in view of the mitigating factors noted above.

In the end, I find that this appeal has merit and must succeed. I allow the appeal, quash the conviction and set aside the sentence. The sum of Kshs.296,508/= that had been paid as fine be refunded to the payee.

Dated, Signed and Delivered at NYAHURURU this 14thday of November,2017.

.............................

R.P.V. Wendoh

JUDGE

PRESENT:

Mr. Mutembei- Prosecution Counsel

Soi - Court Assistant

Appellant - present

Mr. Mureithi h/b for Mr. Waichungo - for appellant