[2015] KEHC 4946 (KLR)
The court found that while the fine of KES 50,000 imposed on the appellant was lawful and not excessive, the default custodial sentence of five years imprisonment exceeded the statutory maximum of three years prescribed by Section 32(8) of the Alcoholic Drinks Control Act. The trial magistrate erred in imposing a...
Source-derived case information.
- Citation
- [2015] KEHC 4946 (KLR)
- Parties
- Applicant: Zainab Akinyi Barasa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 95 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- EM Muchoki
- Legal Topics
- Sentencing Error, Alcoholic Drinks Control, Default Sentence, Statutory Penalties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zainab Akinyi Barasa
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the default custodial sentence imposed exceeded the statutory maximum under the Alcoholic Drinks Control Act.
- 2 Whether the fine imposed was excessive or unlawful.
Ratio Decidendi
The court found that while the fine of KES 50,000 imposed on the appellant was lawful and not excessive, the default custodial sentence of five years imprisonment exceeded the statutory maximum of three years prescribed by Section 32(8) of the Alcoholic Drinks Control Act. The trial magistrate erred in imposing a default sentence beyond the statutory limit. The appeal was allowed to the extent that the default sentence was reduced to three years imprisonment, aligning the sentence with the statutory requirements.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence is altered to a fine of KES 50,000 in default to serve three years imprisonment.
Full Case Text
Judgment text and source record
18 paragraphs
KREPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
HCCRA 95 OF 2013
( From original conviction and sentence in Criminal Case number 277 of 2014 of the Principal Magistrate`s court at Ukwala – Hon. R.M. OANDA-AG PM)
ZAINAB AKINYI BARASA …................APPLICANT
VERSUS
REPUBLIC......................................... RESPONDENT
JUDGEMENT
The appellant was charged with manufacturing and packaging of alcoholic drink in un-prescribed container contrary to section 32(a) (b)as read with subsection 8 of the Alcoholic drinks control Act. The particulars were that on 20th May 2014 at Ligingo trading centre in Ugenya District within Siaya county she was found with 200 litres of Busaa in un-prescribed containers. She pleads guilty to the charge and was sentenced to a fine of ksh. 50,000/- in default to serve five years imprisonment. She appealed and as can be discerned from the petition of appeal and the written submissions the appeal is only on the sentence. At the hearing of the appeal she relied on the written submissions in which she beseeches this court to forgive her and promises not to re-offend.
Prosecuting Counsel conceded the appeal but only to the extent that the default sentence was erroneous in that whereas the Act provides for three years imprisonment the Trial Magistrate sentenced the appellant to five years imprisonment.
I have considered the submissions by both sides carefully and concur with prosecuting counsels` submissions that the sentence is illegal to the extent that it ordered that the appellant serve a term of five years imprisonment in default of payment of the fine imposed. Section 32 (8) of the Alcoholic Drinks Control Act provides for a fine not exceeding one million shillingsor to imprisonment for a term not exceeding three years or to both. The fine of ksh. 50,000/- imposed was therefore not excessive but the default sentence ought to have been three years not five. The appeal therefore succeeds to the extent that the sentence is now altered to a fine of ksh. 50,000/- (fifty thousand)in default to serve three (3) years imprisonment. It is so ordered.
E.N. MAINA
JUDGE
Signed, dated and delivered in Kisumu this 5th day March, 2015
Mr. Ruto for the state
Appellant in person
Moses Okumu- Court clerk
ENM/aar