[2016] KEHC 3580 (KLR)
The court found that the order of forfeiture of the beer was not authorized by either section 62 or section 7(1)(b) of the Alcoholic Drinks Control Act. The penalty provisions under section 62 only provide for a fine not exceeding Kshs 500,000, imprisonment for a term not exceeding three years, or both, and do not...
Source-derived case information.
- Citation
- [2016] KEHC 3580 (KLR)
- Parties
- Appellant: Isaac Mwaura; Appellant: Reuben Gitau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 18 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; order of forfeiture set aside; beer to be returned to appellants.
- Legal Topics
- Alcoholic Drinks Control, Forfeiture of Property, Sentencing, Statutory Penalties
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Mwaura
Appellant
Reuben Gitau
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the order of forfeiture of beer to the state was lawful under the Alcoholic Drinks Control Act.
- 2 Whether section 62 or section 7(1)(b) of the Alcoholic Drinks Control Act authorizes forfeiture as a penalty.
Ratio Decidendi
The court found that the order of forfeiture of the beer was not authorized by either section 62 or section 7(1)(b) of the Alcoholic Drinks Control Act. The penalty provisions under section 62 only provide for a fine not exceeding Kshs 500,000, imprisonment for a term not exceeding three years, or both, and do not mention forfeiture. Since the law does not expressly provide for forfeiture as a penalty for the offence in question, the trial court acted without legal basis in ordering the forfeiture. The forfeiture order was therefore set aside, and the beer was ordered to be returned to the appellants.
Court Disposition
Appeal allowed in part; order of forfeiture set aside; beer to be returned to appellants.
Orders
- The order of forfeiture of the beer is set aside.
- The crates of beer shall be returned to the appellants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 18 OF 2016
ISAAC MWAURA
REUBEN GITAU................................................................APPELLANTS
VERSUS
REPUBLIC……… ………………………………………RESPONDENT
(Being an appeal from the original conviction and sentence in CR. 72 of 2016 at Karaba Principal Magistrate's Court by Hon. P.M. Kiama - PM on 1st April, 2016 2016)
JUDGEMENT
1. The appellants were convicted on their own plea of guilty to the offence of selling alcoholic drinks without a licence contrary to section 7 (1) (b) as read with section 62 of the Alcoholic Drinks Control Act (Cap 121A) Laws of Kenya, and were sentenced to a fine of Kshs 100,000/- and in default each was to serve 12 months imprisonment, by the court of the Principal Magistrate at Karaba on 1st April 2016.
2. The penalty provided for those who are convicted under the Alcoholic Drinks Control Act is Kshs 500,000/- or imprisonment for a term not exceeding 3 years or to both. In terms section 62 provides as follows “Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years or to both” In sentencing the appellants, the trial court took into account that the fine prescribed under the Act is Kshs 500,000/-. It also took into account the quantity of the beer that they were found selling without a permit and the potential danger posed to the community. The appellants were found selling a 185 crates of beer known as viena and 18 crates of another brand of beer called summit.
3. They appealed to this court against both conviction and sentence. Additionally, they also appealed against the order of forfeiture of the beer to the state.
4. During the hearing of this appeal their counsel, Mr Eddie Njiru abandoned the appeal in respect of both conviction and sentence and proceeded only to challenge the order of forfeiture. He submitted in this regard that the order for forfeiture was illegal, because it is not provided for under section 62 of the Alcoholic Drinks Control Act (Cap 121A) Laws of Kenya. He therefore urged the court to set it aside.
5. Ms Mbae for the state conceded that the order for forfeiture was not authorized by the law.
6. I have considered the submissions of both counsel. I find that the order of forfeiture is not authorized by section 62 of the Alcoholic Drinks Act. This is clear from the penalty provisions of section 62 of the said Act. I also find that it is not authorized by section 7 (1) (b) of the same Act.
7. In view of the foregoing, the forfeiture order is hereby set aside.
8. The crates of beer should be returned to the appellants.
JUDGEMENT DELIVERED, DATEDandSIGNED in open court at EMBU this 26th day of JULY, 2016.
In the presence of Mr E. Njiru for appellants and Ms Mbae for the respondent.
Court clerk Njue
J.M. BWONWONGA
JUDGE
26. 07. 16