[2017] KEHC 3311 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 10 OF 2017

WILSON KINYUA MARIANA………………………….………………APPELLANT

VERSUS

REPUBLIC…………………………………..........................................RESPONDENT

JUDGMENT

The Appellant herein was on the 6/12/2016 convicted and sentenced to serve 3 years imprisonment for the offence of selling Alcoholic Drinks without a license Contrary to Section 7 (l) (b) as read with Section 62 of the Alcoholic Drinks Control Act No. 4 of 2010.

The Particulars are that on the 7th day of ,March, 2016 at about 2040 hours at Ena Market within Embu County, was found selling Alcoholic Drinks namely Narcotic to wit 5 litres without a license.

He was aggrieved by the conviction and the sentence and has Appealed to this court and has listed three grounds of Appeal which are that; the sentence was excessive and Contrary to the Law, that the learned Magistrate failed to consider that the alleged illicit brew was not for sale but for consumption and that his mitigation was not considered.

In his submissions, the Appellant stated that he was arrested at Ena market with 5 litres of traditional beer and was sentenced to serve 3 years imprisonment.

That he was arrested a day after he was released on bond in another charge of being in possession of Changaa. He averred that he did not have any Changaa when he was arrested in respect of the charge herein. He further submitted that the court did not consider his mitigation.

On the part of the Respondent, it was submitted that the sentence was neither excessive nor contrary to the law. That the learned Magistrate took into account the previous conviction of the Appellant and that the prosecution witnesses tendered sufficient evidence on the basis of which the Appellant was convicted.

It was further submitted that the Appellant was found in possession of 5 litres of illicit brew and that he was selling the same to the members of the public without a license. That the illicit brew was an alcoholic drink according to the government analyst report that was an exhibit.

The summary of the evidence adduced in the lower court is that on the 7/3/2016 at 7. 30 pm, PW1 and PW2 received a call from an informer who told them that at Rwendo, someone was selling illicit brew namely “Machore”. They proceeded to the area and met the Appellant with 5 litres Jerican containing alcoholic drink which was in a white Jerican that he was holding. The other people ran away.

The Appellant was arrested and escorted to Ap. post and then to Runyenjes police station.

When the Appellant was put on his defence, he opted to remain silent.

PW3 was the investigating officer. He prepared the charge sheet and the exhibit memo form dated the 7/3/2016. He stated that he took the sample of the brew to the government chemist who confirmed that the illicit brew would be included in the definition of traditional liquor. He produced the said report as an exhibit.

This court has considered the grounds of Appeal, the submissions and the evidence on record.

The first ground of Appeal is that the sentence was excessive. The Appellant has been charged under Section 7(l) (b) as read with Section 62 of the Alcoholic drinks Control Act no 4 of 2010. Under the said Section, upon conviction, one is liable to pay a fine of ksh 500,000 or serve 3 years imprisonment. The Appellant was sentenced to serve 3 years imprisonment and the Magistrate noted that he was not a first offender having earlier been convicted for selling alcoholic drinks in criminal case no 133/2016 wherein he was sentenced to pay a fine of 10,000 in default 6 months imprisonment. Infact when he was arrested he had just completed the sentence and it is for that reason that the learned Magistrate issued a deterrent sentence of 3 years.

I concur with the learned Magistrate that the Appellant not being a first offender, needed a deterrent sentence. I find that the sentence is not excessive.

On ground no 2 the evidence on record is clear that PW1 and PW2 found the Appellant selling the illicit brew to third parties who run away on seeing them. It is not therefore true that he was not selling the same. In his submissions he admitted that he was arrested with the 5 litres of traditional beer.

On the third ground of Appeal he avers that his mitigation was not considered by the trial Magistrate. I have perused the record of the lower court and I note that the Appellant prayed for Leniency in his Mitigation. The court considered the mitigation before the Appellant was sentenced but due to the fact that he is not a first offender, the learned Magistrate issued a deterrent sentence.

Having analyzed the evidence as aforesaid, I find that the Appeal has no Merits and the same is dismissed.

It is so ordered.

Dated, Signed and Delivered at Embu this 2ndDay October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent