[2019] KEHC 9061 (KLR)
The court found that the plea-taking process was fundamentally flawed as the facts constituting the offence were not read to the accused, and she was not asked to admit to those facts. Furthermore, the exhibit allegedly recovered from the accused was not properly linked to her, nor was there any evidence or...
Source-derived case information.
- Citation
- [2019] KEHC 9061 (KLR)
- Parties
- Respondent: Republic; Applicant: Cecilia Kananu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 61 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence and Conviction
- Outcome
- conviction quashed and sentence set aside
- Judges
- A Mabeya
- Legal Topics
- Plea Procedure, Conviction Irregularity, Sentencing Revision, Evidence Admissibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Cecilia Kananu
Applicant
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence and Conviction
Legal Issues
- 1 Whether the plea of guilty was properly entered in accordance with the law.
- 2 Whether the facts constituting the offence were adequately put to the accused and admitted.
- 3 Whether the exhibit produced was properly linked to the accused and proven to be an alcoholic substance as required by law.
Ratio Decidendi
The court found that the plea-taking process was fundamentally flawed as the facts constituting the offence were not read to the accused, and she was not asked to admit to those facts. Furthermore, the exhibit allegedly recovered from the accused was not properly linked to her, nor was there any evidence or certificate to prove that the substance was alcoholic as required by law. These procedural irregularities rendered the conviction and sentence unsafe and irregular. Consequently, the court quashed the conviction and set aside the sentence, ordering the applicant's release unless otherwise lawfully held.
Court Disposition
conviction quashed and sentence set aside
Orders
- The conviction of Cecilia Kananu is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HCCR REV. CASE NO 61 OF 2019
REPUBLIC ...........................................................................................DPP
VERSUS
CECILIA KANANU..................................................................ACCUSED
RULING OF REVISION
1) The accused Cecilia Kananu was charged with the offence of processing alcoholic drinks without a licence contrary to Section 7 (i) as read with Section 62 of the Alcoholic drinks control Act No. 4 of 2010. She pleaded guilty to the charge and was convicted of her own plea of guilt. She was sentenced a fine of Kshs. 40,000/= in default to serve 8 months imprisonment.
2) She has applied by way of a notice of Motion dated 26/06/2019 for her sentence to be revised. She states that she is a widow having 5 children the last born being 6 months.
3) At the hearing of the application, her counsel Mr. Muthomi paraded the five children in court with their aged and frail grandmother and pleaded with the court to pardon the accused.
4) Mr. Gitonga, learned state counsel opposed the application on the basis that the fined of Kshs. 40,000/= was lenient as the maximum fine is Kshs. 500,000/= and/or imprisonment for 3 years.
5) I have on my part looked at the proceedings. The record shows that after the charge was read to the applicant the court did not enter a plea of guilty as required. The prosecution proceeded to produce what is shown to be “40 litres of Muna “Exh 1, whereupon the applicant was convicted of the offence.
6) Two issue arise. The facts that constituted the offence were not read to the applicant. It is a requirement that once an accused has pleaded guilty, the court should first enter a plea of guilt then require the prosecution to read the facts to the accused. The Court is required to ask the accused to admit whether the facts are correct. It is only after an accused has admitted to the facts that the court should proceed to convict the accused see a decision in Obedi Kilonzo Kavevo V.R [2015] eKLR .
7) This did not happen in this case.
8) The second issue is the exhibit that was produced. Two questions arise regarding it: -
i. The accused did not admit that the exhibit produced was recovered from her. The record does not show that
ii.There is nothing to show that the said exhibit was alcohol or contained alcoholic substances. A court of law cannot rule that any liquid contains alcohol without a certificate of the Government Chemist.
9)Such Certificate lacking. It is unsafe to hold that the exhibit produced is a substance that if used for preparing an alcoholic substance in terms of the Act. See Mercy Kendi Kathambi V.R [2014] Eklr and Purity Njambi Njoroge V.r [2017] Eklr.
10) In view of the foregoing, I find the proceedings that led to the conviction and sentencing of the applicant to have been irregular and cannot stand.
11) In the circumstances, I quash the conviction and set aside the sentence.
12) The applicant is to be set free at liberty unless otherwise lawfully held.
DATED and DELIVERED at Meru this 14th day of February, 2019.
A. MABEYA
JUDGE