[2017] KEHC 1037 (KLR)
The court found that the sentence of three months imprisonment for the offence of being drunk and disorderly was harsh, severe, and manifestly excessive. The offence was minor and, in the court's view, warranted a non-custodial sentence. The Probation Report supported this position, recommending a community-based...
Source-derived case information.
- Citation
- [2017] KEHC 1037 (KLR)
- Parties
- Applicant: Salimini Amir; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 137 of 2017
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence revised; applicant released unless held for other lawful cause
- Judges
- CM Kamau
- Legal Topics
- Sentencing Principles, Revision of Sentence, Alcohol Related Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salimini Amir
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence of three months imprisonment for being drunk and disorderly was harsh, severe, and manifestly excessive.
- 2 Whether the sentence should be revised to a non-custodial sentence.
Ratio Decidendi
The court found that the sentence of three months imprisonment for the offence of being drunk and disorderly was harsh, severe, and manifestly excessive. The offence was minor and, in the court's view, warranted a non-custodial sentence. The Probation Report supported this position, recommending a community-based sentence. The court exercised its revisionary jurisdiction to set aside the custodial sentence and substitute it with a Community Service Order for one day, taking into account the period already served by the applicant. The court further noted that the count relating to unlawful presence in Kenya had been withdrawn, confirming the applicant's legal status in the country.
Court Disposition
sentence revised; applicant released unless held for other lawful cause
Orders
- The sentence of three months imprisonment for disorderly conduct is set aside and replaced with a Community Service Order for one day.
- The applicant having already served twenty-seven days in prison is to be released forthwith unless held for any other lawful cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VOI
CRIMINAL REVISION NO 137 OF 2017
SALIMINI AMIR.................APPLICANT
VERSUS
REPUBLIC.......................RESPONDENT
RULING
1. The Applicant filed an application for Revision dated 14th November 2017 on 20th November 2017. He was convicted of the offence of being drunk and disorderly contrary to Section 41 as read with Section 53(1) of the Taita Taveta Alcoholic Drinks Control and Licensing Act 2016 and sentenced to three (3) months without the option of a fine.
2. This court agreed with him and the State that the said sentence was harsh, severe and manifestly excessive warranting interference by this court. In fact it was an offence that would have attracted a non-custodial sentence. Indeed, the Probation Report dated 18th December 2017 by Johnstone M Kisyan’ga Community Service Officer recommended that the Applicant be repatriated back to his country.
3. Count II in respect of having been unlawfully in Kenya contrary to Section 53(v) (j) as read with Section 53 (2) of the Kenya Citizenship and Migration Act was withdrawn implying that he was legally in Kenya.
4. Having considered the proceedings and having heard the State and the Applicant, this court hereby direct as follows:-
1. The sentence of three (3) months in respect of Count III of disorderly conduct contrary to Section 41 as read with Section 53 (1) of the Taita Taveta Alcoholic Drinks Control and Licensing Act 2016 is hereby set aside and/or vacated and replaced with on order for Community Service Order for one (1) day.
2. As the Applicant has already served twenty seven (27) days in prison, I hereby direct that he be released forthwith unless he be held for any other lawful cause
3. It is so ordered
DATED and DELIVERED at VOI this 20thday of December2017
J. KAMAU
JUDGE
In the presence of:-
Salimini Amir- Applicant
Miss Anyumba - for State
Susan Sarikoki – Court Clerk