[2017] KEHC 3477 (KLR)
The court found that the sentence imposed by the trial magistrate was illegal because it exceeded the statutory maximum fine prescribed by Section 33(2) of the Alcoholic Drinks Control Act, 2010. The correct maximum fine for the offence of being drunk and disorderly is Kshs. 500, not Kshs. 5,000 as was imposed. The...
Source-derived case information.
- Citation
- [2017] KEHC 3477 (KLR)
- Parties
- Applicant: Republic; Respondent: Edward Mbuvi
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 7 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Revision of Sentence
- Outcome
- sentence revised; illegal sentence set aside and substituted with lawful sentence
- Judges
- LN Mutende
- Legal Topics
- Sentencing Error, Statutory Maximum Penalty, Alcohol Related Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Edward Mbuvi
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate exceeded the statutory maximum for the offence of being drunk and disorderly.
- 2 Whether the sentence should be revised to comply with the Alcoholic Drinks Control Act.
Ratio Decidendi
The court found that the sentence imposed by the trial magistrate was illegal because it exceeded the statutory maximum fine prescribed by Section 33(2) of the Alcoholic Drinks Control Act, 2010. The correct maximum fine for the offence of being drunk and disorderly is Kshs. 500, not Kshs. 5,000 as was imposed. The court therefore set aside the illegal sentence and substituted it with the lawful sentence of a fine of Kshs. 500 or, in default, 14 days imprisonment. Any excess amount paid by the respondent as a result of the illegal sentence is to be refunded.
Court Disposition
sentence revised; illegal sentence set aside and substituted with lawful sentence
Orders
- The sentence of a fine of Kshs. 5,000 or two months imprisonment is set aside.
- The respondent is sentenced to a fine of Kshs. 500 or 14 days imprisonment in default.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL REVISION CASE NO. 7 OF 2017
REPUBLIC ……………....……………...…........APPLICANT
VERSUS
EDWARD MBUVI................................……....RESPONDENT
R U L I N G
1. This file was forwarded to me from Kyuso Principal Magistrate’s Court for purposes of Revision as the Hon. J. Aringoimposed an illegal fine in the matter.
2. Edward Mbuviwas charged with the offence of Being Drunk and Disorderlycontrary to Section 33(1)as read with Section 33(2)of the Alcoholic Drinks Control Act 2010. Particulars of the offence were that on the 19thday of June, 2017at Kyuso Law Courts Premisesand Probation Officesin Kyuso Location, Kyuso Sub-Countywithin Kitui Countywas found being drunk and disorderly person by shouting and staggering due to drunkenness.
3. He admitted the charge at the outset. He was convicted and fined Kshs. 5,000/=or to serve two (2) months imprisonmentin default.
4. In his letter seeking Revision of the matter the trial Magistrate wrote that he erroneously wrote Kshs. 5,000/=instead of Kshs. 500/=being the maximum fine set by statute.
5. Section 33(2)of the Alcoholic Drinks Control Act 2010provides thus:
“(2) Any person convicted of being drunk and incapable or drunk and disorderly in or near a place referred to in subsection (1) shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding three months or to both.”
6. The sentence imposed is illegal. Therefore I do set aside the sentence and substitute it with one of Kshs. 500/=or 14 days imprisonmentin default.
7. The excess amount if paid shall be refunded to the offender.
8. It is so ordered.
Dated, Signed and Delivered at Kitui this 23rd day of August, 2017.
L. N. MUTENDE
JUDGE