Kenya Judgment

High Court · High Court at Kitui

Republic v Edward Mbuvi [2017] KEHC 3477 (KLR)

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Research organized from the available case record

Source document

01

Holding and result

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.
  • Any excess amount paid by the respondent shall be refunded.

02

Material facts

Parties

Republic

Applicant

Edward Mbuvi

Respondent

Amounts and remedies

  • Original Fine Imposed: KES 5,000
  • Statutory Maximum Fine: KES 500

03

Procedural history

  1. Posture

    Criminal Revision / Ruling on Revision of Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The trial magistrate, upon review, acknowledged that an illegal fine of Kshs. 5,000 was imposed instead of the statutory maximum of Kshs. 500 for the offence of being drunk and disorderly. The applicant seeks revision to correct this error.
Respondent
The respondent admitted the charge and was convicted. There is no record of opposition to the revision or argument against the reduction of the fine.

05

Court’s reasoning

  1. 01

    Section 33(2) of the Alcoholic Drinks Control Act, 2010

    A sentence that exceeds the statutory maximum is illegal and must be set aside.

  2. 02

    Section 33(2) of the Alcoholic Drinks Control Act, 2010

    Upon conviction for being drunk and disorderly, the maximum penalty is a fine not exceeding Kshs. 500 or imprisonment for a term not exceeding three months or both.

06

Ratio, limits and disposition

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.

Obiter and limits

  • The excess amount if paid shall be refunded to the offender.

Court disposition

sentence revised; illegal sentence set aside and substituted with lawful sentence

  • 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.
  • Any excess amount paid by the respondent shall be refunded.

Source and reliance status

High Court

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Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 3477 (KLR)

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

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 33(1) and 33(2) of the Alcoholic Drinks Control Act, 2010

Legislation

Legislation referenced in the available case record.

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