[2017] KEHC 6668 (KLR)
The court found that the applicant's conviction was proper as her plea of guilty was unequivocal. However, the sentence imposed by the trial court was deemed harsh and excessive given the nature of the offences (selling alcohol without a licence and after hours), the small quantity involved (7 bottles), the...
Source-derived case information.
- Citation
- [2017] KEHC 6668 (KLR)
- Parties
- Applicant: Rose Muyathi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 1 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence and Conviction
- Outcome
- sentence set aside; applicant released; conviction upheld
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Principles, Plea of Guilty, Liquor Licensing Offences, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Muyathi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence and Conviction
Legal Issues
- 1 Whether the conviction of the applicant on her own plea of guilty was proper.
- 2 Whether the sentence imposed by the trial court was harsh and excessive in the circumstances.
- 3 Whether the default prison sentences should run consecutively or concurrently.
Ratio Decidendi
The court found that the applicant's conviction was proper as her plea of guilty was unequivocal. However, the sentence imposed by the trial court was deemed harsh and excessive given the nature of the offences (selling alcohol without a licence and after hours), the small quantity involved (7 bottles), the applicant's status as a first offender, her plea for leniency, and the fact that she had already served two months in prison. The court exercised its revisionary jurisdiction to set aside the original sentence and substitute it with a sentence of time already served, ordering the applicant's immediate release unless otherwise lawfully held.
Court Disposition
sentence set aside; applicant released; conviction upheld
Orders
- The sentence of the trial court is set aside and substituted with a sentence of time already served.
- The applicant shall be released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL REVISION NO. 1 OF 2017
ROSE MUYATHI………...APPLICANT
VS
REPUBLIC……………RESPONDENT
RULING
Before me is an application under certificate of urgency brought by the applicant and filed on 9th March 2017 asking for review of sentence and conviction of the trial court.
The applicant was convicted on her own plea guilty of to a charge of selling alcoholic drink without a licence contrary to section 7(1)(b) as read with section 62 of the Liquor Licensing Act of 2010,andselling alcoholic drink after hours contrary to section 34 as read with section 4 of the same Act.
She was sentenced to pay a fine of Khs 20,000= or serve six months imprisonment on count 1, and a fine of Kshs 10,000= or 3 months imprisonment on count 2.
The applicant has complained that the sentence is harsh and excessive, and that she has young children to take care of.
Though under section 365 of the Criminal Procedure Code (Cap 75) this court is not bound to hear the parties, I allowed both the applicant and the DPP to address me. The Prosecuting Counsel Mr. Okemwa informed the court that the applicant did not tell the trial court that she had young children of 7 and 5 years.
This court has wide powers in its criminal revision jurisdiction conferred under section 364 of the Criminal Procedure Code.
Having perused the record of the trial court and considered the complaints of the applicant and the submissions of the State, I am of the view that the conviction was proper. The guilty plea of the applicant was unequivocal. I uphold the conviction.
With regard to sentence, the applicant has complained that the trial court did not say if the default prison sentence was consecutive or concurrent. All this in my view means that the default prison sentences were to run consecutively. I am however of the view that the nature of the offences and the quantity of alcohol which was given in the facts of the prosecutor as 7 bottles, and the fact that the applicant pleaded guilty and asked for leniency and was a first offender, did not call for such a severe sentence. The applicant has been in prison for 2 months now which I consider to be adequate punishment.
I set aside the sentence of the trial court and order that the sentence will be that already served. The effect is that the applicant will be released from prison, unless otherwise lawfully held.
Dated and delivered at Garissa this 4th April 2017.
GEORGE DULU
JUDGE