[2017] KEHC 5900 (KLR)
The court found that the trial court properly convicted and sentenced the applicant in accordance with the law. The sentences imposed were lawful and within the statutory limits for the offences of incitement to violence and dealing in changaa without a licence. The trial magistrate exercised leniency by imposing...
Source-derived case information.
- Citation
- [2017] KEHC 5900 (KLR)
- Parties
- Appellant: Rose Emokori Nanjala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 22 of 2017
- Procedural Posture
- Criminal Revision Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- CW Githua
- Legal Topics
- Incitement to Violence, Sentencing Review, Alcohol Related Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Emokori Nanjala
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was illegal, improper, or irregular and thus subject to revision.
- 2 Whether the applicant is entitled to a non-custodial sentence based on her personal circumstances.
Ratio Decidendi
The court found that the trial court properly convicted and sentenced the applicant in accordance with the law. The sentences imposed were lawful and within the statutory limits for the offences of incitement to violence and dealing in changaa without a licence. The trial magistrate exercised leniency by imposing fines with an option of imprisonment, rather than a custodial sentence without the option of a fine. There was no mistake, irregularity, or illegality in the proceedings or the sentence to warrant the exercise of the High Court's revisionary jurisdiction. Consequently, the application for review of sentence lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 31st January, 2017 is dismissed.
- The Hon. Deputy Registrar is directed to serve a copy of this ruling on the applicant through the office of the Officer In Charge of the Eldoret GK Women prison.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL MISC. APP NO. 22 OF 2017
ROSE EMOKORI NANJALA ……….……..……………. APPELLANT
VERSUS
REPUBLIC …………………….....……………………… RESPONDENT
RULING
1. By a Notice of Motion dated 31st January 2017, the applicant Rose Emokori Nanjala requested this court to review the sentence meted out against her in the Chief Magistrate’s Court at Eldoret Criminal Case No. 288 of 2017. She prays that upon review of the sentence, the court be pleased to impose a non-custodial sentence.
2. In the trial court, the applicant was convicted on her own plea of guilty in two counts in which she was charged with the offence of incitement to violence contrary to Section 96 of the Penal Code and dealing in changaa contrary to Section 7(1) (b) as read with Section 62 of the Alcoholic drinks Control Act No. 4of 2010. Upon her conviction, she was sentenced to pay a fine of Kshs.25,000 in default to serve 4 months imprisonment in count 1 and a fine of Kshs.40,000 in default to serve six months imprisonment in count 2.
3. The application is supported by an affidavit sworn by the applicant on 31st January, 2017 which replicates the grounds anchoring the motion. In essence, the applicant contends that she is landless and has school going children; that together with her husband, they live in a rental house and have no means to pay the fine imposed by the trial court; that if the application is not allowed, her family will suffer; that the court has discretion to grant the orders sought.
4. The applicant’s motion invokes the revisionary jurisdiction of this court. This is a jurisdiction donated to the court by Section 362 as read with Section 364 of the Criminal Procedure Code (CPC). The two provisions when read together limits the power of this court in the exercise of its revisionary jurisdiction to only reviewing and correcting decisions or orders made by the lower court as a result of a mistake or irregularity apparent on the record of the court or if it is demonstrated that the orders or sentence sought to be reviewed were tainted with illegality.
5. As stated earlier, the applicant was convicted and sentenced of the offences of incitement to violence contrary to section 96 of the Penal Code and dealing in changaa without a licence contrary to Section 7(1) (b) as read with Section 62 of the Alcoholic Drinks Control Act. With regard to the first count, Section 96 of the Penal Code prescribes a penalty of a term not exceeding five years imprisonment while Section 62 of the Alcoholic Drinks Control Act prescribes a sentence of a fine not exceeding Kshs.500,000 or imprisonment for a term not exceeding three years or both.
6. Upon my evaluation of the proceedings before the lower court, I see nothing improper or illegal about the manner in which the court convicted the applicant of the two offences and the sentence imposed in each count. The sentences were in accordance with the law and were therefore lawful. The two offences attract heavy penalties on conviction and in my view, the learned trial magistrate was actually lenient in sentencing the applicant to a non-custodial sentence of payment of fines as opposed to a custodial sentence without an option of payment of a fine.
7. Consequently, I find no merit in the Notice of Motion dated 31st January, 2017 and it is accordingly dismissed. The Hon. Deputy
Registrar is directed to serve a copy of this ruling on the applicant through the office of the Officer In Charge of the Eldoret GK Women prison.
It is so ordered.
C.W GITHUA
JUDGE
DATED, SIGNEDandDELIVEREDatELDORETthis 20th day of February, 2017.