[2018] KEHC 471 (KLR)
The Resident Magistrate lacked jurisdiction to try the offence under the Alcoholic Drinks Control Act, as the Act restricts jurisdiction to magistrates above the rank of Resident Magistrate. Consequently, both the conviction and the sentence imposed are null and void. Additionally, the sentence of one day community...
Source-derived case information.
- Citation
- [2018] KEHC 471 (KLR)
- Parties
- Applicant: Republic; Respondent: Moses Maina; Respondent: Samuel Waweru; Respondent: Joseph Koome
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 37 of 2018
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- conviction and sentence quashed
- Legal Topics
- Jurisdiction of Magistrates, Community Service Orders, Sentencing Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Moses Maina
Respondent
Samuel Waweru
Respondent
Joseph Koome
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether a Resident Magistrate has jurisdiction to try offences under the Alcoholic Drinks Control Act.
- 2 Whether the sentence of one day community service order is lawful and effective.
- 3 Whether the conviction and sentence imposed by the Resident Magistrate are valid.
Ratio Decidendi
The Resident Magistrate lacked jurisdiction to try the offence under the Alcoholic Drinks Control Act, as the Act restricts jurisdiction to magistrates above the rank of Resident Magistrate. Consequently, both the conviction and the sentence imposed are null and void. Additionally, the sentence of one day community service was irregular, as it failed to specify the place and conditions for service and was insufficient in duration to achieve deterrence or rehabilitation. The High Court therefore quashed both the conviction and the sentence.
Court Disposition
conviction and sentence quashed
Orders
- Both the conviction and sentence imposed by the Resident Magistrate are quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CRIMINAL REVISION NO. 37 OF 2018
REPUBLIC........................................APPLICANT
-VERSUS-
MOSES MAINA .....................1ST RESPONDENT
SAMUEL WAWERU ............ 2ND RESPONDENT
JOSEPH KOOME..................3RD RESPONDENT
(Being Revision of the Order of the Resident Magistrate dated 19th February, 2018 in the Chief Magistrate Court at Narok, in Criminal Case No. 215 of 2018, Republic V. Moses Maina & 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. Orders accordingly.
Order on revision dated this 30th day of November, 2018
J.M. BWONWONGA
JUDGE
30/11/2018