[2018] KEHC 165 (KLR)
The Resident Magistrate lacked jurisdiction to try offences under the Alcoholic Drinks Control Act because the Act restricts jurisdiction to magistrates above the rank of Resident Magistrate. Consequently, the proceedings, conviction, and sentence were null and void. Additionally, the sentence imposed was irregular...
Source-derived case information.
- Citation
- [2018] KEHC 165 (KLR)
- Parties
- Applicant: Republic; Respondent: Simon Muigai Njenga
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 30 of 2018
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- conviction and sentence quashed
- Legal Topics
- Jurisdiction of Magistrates, Alcoholic Drinks Control Offences, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Simon Muigai Njenga
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 offences under the Alcoholic Drinks Control Act because the Act restricts jurisdiction to magistrates above the rank of Resident Magistrate. Consequently, the proceedings, conviction, and sentence were null and void. Additionally, the sentence imposed was irregular as it failed to specify the place and conditions for community service and was too short to achieve deterrence or rehabilitation. The High Court therefore quashed both the conviction and sentence.
Court Disposition
conviction and sentence quashed
Orders
- Both the conviction and sentence are hereby quashed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CRIMINAL REVISION NO.30 OF 2018
REPUBLIC............................................APPLICANT
VERSUS
SIMON MUIGAI NJENGA............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. 65 of 2018, Republic V. Simon Muigai Njenga).
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