[2006] KEHC 768 (KLR)
The court found that while the trial magistrate was justified in imposing a custodial sentence given the quantity of Chang’aa found in the applicant’s possession, the law required that a fine be imposed first before imprisonment could be considered. There was no evidence that the applicant was a repeat offender. The...
Source-derived case information.
- Citation
- [2006] KEHC 768 (KLR)
- Parties
- Applicant: Susan Wanjiku Mutai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 12 of 2006
- Procedural Posture
- Miscellaneous Application / Revision of Sentence After Conviction and Sentencing
- Outcome
- sentence revised; applicant released
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Principles, Possession of Illicit Liquor, Revision Jurisdiction, Changaa Prohibition Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Wanjiku Mutai
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Revision of Sentence After Conviction and Sentencing
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate was lawful under the Chang’aa Prohibition Act.
- 2 Whether the applicant was entitled to have the sentence revised under Section 362 of the Criminal Procedure Code.
Ratio Decidendi
The court found that while the trial magistrate was justified in imposing a custodial sentence given the quantity of Chang’aa found in the applicant’s possession, the law required that a fine be imposed first before imprisonment could be considered. There was no evidence that the applicant was a repeat offender. The sentence of four months imprisonment without the option of a fine was therefore unlawful. Exercising its revisionary jurisdiction under Section 362 of the Criminal Procedure Code, the court commuted the sentence to the period already served and ordered the applicant’s immediate release.
Court Disposition
sentence revised; applicant released
Orders
- The sentence of four months imprisonment is set aside and substituted with a sentence of the period already served.
- The applicant is ordered to be set at liberty and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Misc Crim Appli 12 of 2006
SUSAN WANJIKU MUTAI……………................................…………...APPLICANT
VERSUS
REPUBLIC………………...........................……………..…………..RESPONDENT
ORDER ON REVISION
The applicant, Susan Wanjiku Mutai, was charged with being in possession of Chang’aa contrary to Section 3(1) as read with Section 4(1) on the Chang’aa Prohibition Act. The particulars of the offence were that on the 4th of August, 2006, at Brooke village, Kericho District, the applicant was found in possession of 26 litres of Chang’aa in contravention of the said Act. When the applicant was arraigned before court she pleaded guilty to the charge and was sentenced to serve four (4) months imprisonment without an option of fine. The applicant was aggrieved by the said decision of the trial magistrate in sentencing her and has asked this court to exercise its powers under Section 362 of the Criminal Procedure Code to determine the legality of the said sentence.
I have considered the application of revision before me. Section 4(1) of the Chang’aa Prohibition Act provides that a person who is found guilty of being in possession of Chang’aa shall be liable to be fined a sum not exceeding Ksh.10,000/= or in default two (2) years imprisonment or both such fine and imprisonment. In my considered opinion, in view of the amount of Chang’aa that the applicant was found in possession of, the trial magistrate was justified in sentencing her to serve a term in prison. However the law required that the applicant be sentenced to pay a fine first before the option of imprisonment was exercised. There is no evidence that the applicant was a repeat offender. I will therefore exercise my powers of revision as provided by Section 362 of the Criminal Procedure Code and commute the sentence of the applicant to the period already served.
The applicant is therefore ordered set at liberty and released from prison unless otherwise lawfully held.
It is so ordered.
DATED at NAKURU this 6th November, 2006
L. KIMARU
JUDGE