[2013] KEHC 5748 (KLR)
The court found that the trial court erred by convicting and sentencing the accused on the alternative charge without first disposing of the main charge, as there was only one count and an alternative charge. The plea of guilty to the alternative charge rendered the main charge unavailable for trial. Furthermore,...
Source-derived case information.
- Citation
- [2013] KEHC 5748 (KLR)
- Parties
- Applicant: Republic; Respondent: Judy Choma Wanjiru
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 8 of 2013
- Procedural Posture
- Criminal Revision / Judgment on Application for Revision of Conviction and Sentence
- Outcome
- conviction and sentence set aside; matter remitted for mitigation and resentencing
- Legal Topics
- Criminal Revision, Plea of Guilty, Alternative Charge, Sentencing Procedure, Alcoholic Drinks Control, Mitigation Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Judy Choma Wanjiru
Respondent
Procedural Posture
Criminal Revision / Judgment on Application for Revision of Conviction and Sentence
Legal Issues
- 1 Whether the conviction and sentence on the alternative charge were proper in law.
- 2 Whether the accused was denied the right to mitigation before sentencing.
- 3 Whether the trial court erred in convicting on an alternative charge when the main charge was not disposed of.
Ratio Decidendi
The court found that the trial court erred by convicting and sentencing the accused on the alternative charge without first disposing of the main charge, as there was only one count and an alternative charge. The plea of guilty to the alternative charge rendered the main charge unavailable for trial. Furthermore, the accused was not given an opportunity to mitigate before sentencing, and her previous records were not availed to the court. These procedural irregularities rendered the conviction and sentence unsafe. The court set aside the conviction and sentence, directed that the accused be convicted on the alternative charge, and ordered the matter remitted to the trial court for...
Court Disposition
conviction and sentence set aside; matter remitted for mitigation and resentencing
Orders
- Conviction and sentence set aside.
- Accused to be convicted on the alternative charge on her plea of guilty.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL REVISION CASE NO. 8 OF 2013
REPUBLIC….………..…………………………......……………..APPLICANT
versus
JUDY CHOMA WANJIRU …............. ………………………..RESPONDENT
REVISION
This matter has been referred to court for revision under the provisions of section 362 of the Criminal Procedure Code by the Applicant for the court to examine the record as to the correctness, legality and prosperity of the proceedings and judgment imposed on the convict on 26. 6.2013.
The main complaint herein is that the Applicant was charged with the main charge as per the charge sheet dated 24th June 2013 as follows:
Breach of Licence contrary to section 34(a) of the Alcoholic Drinks Control Act No. 4 of 2010 the fact thereof being that on 22nd day of June 2013 at 11. 30 hours at Kiaruhiu Trading Centre in Mathira East District within Nyeri County was found selling alcoholic drinks at Holly Hock Bar to customers who were not taking meal.
He faced an alternative charge of failing to display licence in a conspicuous place on a premises contrary to section 20(1) as read with section 62 of the Alcoholic Drinks Control Act No. 4 of 2010 the particulars of which were that on the 22nd day of June 2013 at 11. 30 hours at Kiaruhiu trading centre in Mathira East District within Nyeri county, failed to display her licence in a conspicuous place on Holly Hock Bar Premises.
The record from the trial court indicates that she pleaded not guilty on count I but pleaded guilty on count II for which the court ordered that the accused be released on a bond of Kshs. 50,000/- and a similar surety in respect of count I.
On count II the accused pleaded guilty to the facts as read by the prosecution and was convicted then to pay a fine of Kshs. 100,000/- or in default serve one year imprisonment.
It should be noted that as per the charge sheet the accused was charged with one count and an alternative charge and therefore there was no count II upon which the accused could have pleaded.
Having pleaded guilty to the alternative charge I take the view that the main charge was therefore not available for trial and the facts as presented supported a conviction on the alternative charge and not the main charge.
I have also noted that the accused person was not given any chance to mitigate and neither was her records availed to the court before passing the sentence herein.
I therefore set aside the conviction and sentence herein and the order in respect of count I and substitute the same with the following orders.
i. Place of guilty in respect of alternative charge.
ii. Conviction on the alternative charge on the accused plea of guilty.
iii. The file to be placed before the trial court to enable the same take the Applicants mitigation and to receive a report on her previous record if any.
iv. The trial court to pass an appropriate sentence on the alternative charge upon receiving the revised persons mitigation and record of previous convictions if any.
The Advocate for the Applicant to be served to appear before the trial court and the applicant to be produced in court on 15th July 2013.
Dated at Nyeri this 8th day of July 2013.
J. WAKIAGA
JUDGE