[2019] KEHC 4280 (KLR)
The court found that the conviction and sentence could not stand because the facts presented did not disclose an offence under the Alcoholic Drinks Control Act, as the exhibits were not alcoholic drinks but plain water. Furthermore, the manner in which the plea was recorded was defective, as the trial magistrate...
Source-derived case information.
- Citation
- [2019] KEHC 4280 (KLR)
- Parties
- Applicant: Salome Kemunto; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Revision Case 21 of 2019
- Procedural Posture
- Criminal Revision / Application for Revision of Conviction and Sentence
- Outcome
- application allowed; conviction reversed; sentences set aside
- Judges
- EM Muchoki
- Legal Topics
- Plea Taking, Possession of Alcoholic Drinks, Evidence Handling, Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Kemunto
Applicant
The Republic
Respondent
Procedural Posture
Criminal Revision / Application for Revision of Conviction and Sentence
Legal Issues
- 1 Whether the facts disclosed an offence under the Alcoholic Drinks Control Act.
- 2 Whether the plea was properly recorded in accordance with the law.
- 3 Whether the conviction and sentence should be set aside given the nature of the exhibits.
Ratio Decidendi
The court found that the conviction and sentence could not stand because the facts presented did not disclose an offence under the Alcoholic Drinks Control Act, as the exhibits were not alcoholic drinks but plain water. Furthermore, the manner in which the plea was recorded was defective, as the trial magistrate failed to confirm the nature of the exhibits before convicting the accused. The court held that it was an error to wait until after conviction and sentencing to verify the exhibits. As a result, the conviction was reversed and the sentences set aside, with orders for the applicant's immediate release and refund of any fine paid.
Court Disposition
application allowed; conviction reversed; sentences set aside
Orders
- The conviction is reversed.
- The sentences are set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
REVISION NO. 21 of 2019
SALOME KEMUNTO.................................................................APPLICANT
VERSUS
THE REPUBLIC......................................................................RESPONDENT
{Being a Revision against the conviction and sentence of Hon. B. M. Kimtai – PM Keroka in Keroka Principal Magistrate’s Court Criminal Case No. 680 of 2019}
18th September, 2019
Before Lady Justice E. N. Maina – J
Court
Keroka PMCR 680 of 2019 has been placed before me for revision. The accused in the said case was arraigned on 2 counts, namely: -
Count I: Being in possession of alcoholic drinks contrary to Section 27 (1) (b) as read with Section 27 (4) of the Alcoholic Drinks Control Act.
Particulars: On 6th August 2019 at Mobaba area in Masaba North Sub-county within Nyamira County was found in possession of 2 litres of chang’aa for sale without a licence.
Count II: Being in possession of alcoholic drinks contrary to Section 27 (1) (b) as read with Section 27 (4) of the Alcoholic Drinks Control Act.
Particulars: On 6th August 2019 at Mobaba area in Masaba North Sub-county within Nyamira County was found in possession of 60 litres of Busaa for sale without a licence.
The accused pleaded guilty on both counts and when the facts were read to her she confirmed they were correct.
The trial Magistrate then convicted and sentenced her to a fine of Kshs. 2,000/= or one (1) month imprisonment on Count I and to a fine of Kshs. 30,000/= or six (6) months imprisonment on Count II.
The trial Magistrate has written to this court stating that when he went to destroy the exhibits he found the same were not chang’aa or busaa but plain water.
I have considered the application before me carefully and my conclusion is that apart from the facts not disclosing an offence, given that the substance exhibited in court was not what it was, the manner of recording the plea was also defective. The trial Magistrate ought to have confirmed that the substance brought before him was what it was alleged to be before convicting the accused person. Waiting until after the conviction and sentencing was an error. Accordingly, the application is allowed. The conviction is reversed and the sentences are set aside. The accused person shall be set at liberty forthwith and if any fine had been paid the same shall be refunded.
E. N. MAINA
JUDGE