[2018] KEHC 355 (KLR)
The Resident Magistrate lacked jurisdiction to try the offence under the Alcoholic Drinks Control Act because the Act defines 'magistrate' as one above the rank of Resident Magistrate. Consequently, the proceedings, conviction, and sentence were null and void. Additionally, the sentence imposed was irregular, as a...
Source-derived case information.
- Citation
- [2018] KEHC 355 (KLR)
- Parties
- Applicant: Republic; Respondent: Christine Akiro; Respondent: Rael Akeno; Respondent: James Lokero; Respondent: Simon Ekero; Respondent: Samson Mugwuel; Respondent: Munyes Nasieku; Respondent: Basi Ole Masasi
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 56 of 2018
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- conviction and sentence quashed
- Legal Topics
- Jurisdiction of Magistrates, Sentencing Irregularities, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Christine Akiro
Respondent
Rael Akeno
Respondent
James Lokero
Respondent
Simon Ekero
Respondent
Samson Mugwuel
Respondent
Munyes Nasieku
Respondent
Basi Ole Masasi
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether a Resident Magistrate has jurisdiction under the Alcoholic Drinks Control Act to try offences under Section 33 (i) (ii).
- 2 Whether the sentence of one day community service order is lawful and effective.
- 3 Whether the conviction and sentence by the Resident Magistrate are valid.
Ratio Decidendi
The Resident Magistrate lacked jurisdiction to try the offence under the Alcoholic Drinks Control Act because the Act defines 'magistrate' as one above the rank of Resident Magistrate. Consequently, the proceedings, conviction, and sentence were null and void. Additionally, the sentence imposed was irregular, as a community service order must specify the place and conditions of service, and a one-day order is insufficient to achieve deterrent or rehabilitative objectives. The court therefore quashed both the conviction and sentence.
Court Disposition
conviction and sentence quashed
Orders
- Both the conviction and sentence are quashed.
- The order of the Resident Magistrate is declared null and void.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CRIMINAL REVISION NO. 56 OF 2018
REPUBLIC..............................................................APPLICANT
-VERSUS-
CHRISTINE AKIRO...................................1ST RESPONDENT
RAEL AKENO............................................2ND RESPONDENT
JAMES LOKERO.......................................3RD RESPONDENT
SIMON EKERO..........................................4TH RESPONDENT
SAMSON MUGWUEL...............................5TH RESPONDENT
MUNYES NASIEKU...................................6TH RESPONDENT
BASI OLE MASASI....................................7TH RESPONDENT
(Being Revision of the Order of the Resident Magistrate dated 5th March, 2018 in the Chief Magistrate Court at Narok, in Criminal Case No. 304 of 2018, Republic v. Christine Akiro & 6 others).
ORDER ON REVISION
1. This matter has been reported by the Chief Magistrate (Hon. W.A. Juma) for orders in respect of the order of the learned Resident Magistrate (Hon. A.N. Sisenda) in which she convicted the respondent on his own plea of guilty for being drunk and disorderly contrary to Section 33 (i) (ii) of the Alcoholic Drinks Control Act No. 4 of 2010. She then proceeded to sentence the respondent by placing him on a community service (C.S.O.) for one day at a place to be designated by the probation officer. This is irregular for a community service order is a sentence, which must indicate the specific place, where the accused is to perform the service and the conditions, which he is required to observe. Moreover, community service for one day is too short a period to have any deterrent or rehabilitative effect on the offender.
2. In her report to this court the Chief Magistrate has indicated that the trial court lacked jurisdiction to entertain and determine this matter. In this regard, the definition of “magistrate” in the interpretation section of the Alcoholic Drinks Control Act in section 2 means “A magistrate who is above the rank of the Resident Magistrate.”
3. It therefore follows that Hon. Sisenda who holds the rank of Resident Magistrate did not have jurisdiction to entertain and determine this matter.
4. It also follows that the order made by the learned resident magistrate is null and void.
5. In the circumstances both the conviction and sentence are hereby quashed.
6. Orders accordingly.
Order on revision dated this 30th day of November 2018
J.M. BWONWONGA
JUDGE