[2018] KEHC 321 (KLR)
The Resident Magistrate lacked jurisdiction to entertain and determine the matter under the Alcoholic Drinks Control Act, as the Act restricts jurisdiction to magistrates above the rank of Resident Magistrate. Consequently, the proceedings, conviction, and sentence were null and void. Furthermore, the sentence...
Source-derived case information.
- Citation
- [2018] KEHC 321 (KLR)
- Parties
- Applicant: Republic; Respondent: Joseph Kipngeno; Respondent: Richard Marenje; Respondent: James Keera
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 31 of 2018
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- conviction and sentence quashed; fine to be refunded if paid
- Legal Topics
- Jurisdiction of Magistrates, Sentencing Irregularities, Alcoholic Drinks Control, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Kipngeno
Respondent
Richard Marenje
Respondent
James Keera
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether a Resident Magistrate has jurisdiction under the Alcoholic Drinks Control Act to hear and determine the offence of being drunk and disorderly.
- 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 entertain and determine the matter under the Alcoholic Drinks Control Act, as the Act restricts jurisdiction to magistrates above the rank of Resident Magistrate. Consequently, the proceedings, conviction, and sentence were null and void. Furthermore, the sentence imposed was irregular, as a community service order for one day is insufficient for deterrence or rehabilitation and failed to specify the place and conditions of service. The court therefore quashed both the conviction and sentence, and ordered any fine paid to be refunded.
Court Disposition
conviction and sentence quashed; fine to be refunded if paid
Orders
- Both the conviction and sentence are quashed.
- If the fine was paid it should be refunded.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CRIMINAL REVISION NO. 31 OF 2018
REPUBLIC.........................................................................APPLICANT
-VERSUS-
JOSEPH KIPNGENO..............................................1ST RESPONDENT
RICHARD MARENJE............................................2ND RESPONDENT
JAMES KEERA .......................................................3RD RESPONDENT
(Being Revision of the Order of the Resident Magistrate dated 18th January, 2018 in the Chief Magistrate Court at Narok, in Criminal Case No. 66 of 2018, Republic V. James Kipngeno & 2 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. If the fine was paid it should be refunded.
7. Orders accordingly.
Order on revision dated this 30th day of November, 2018
J.M. BWONWONGA
JUDGE
30/11/2018