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|Case Number:||Criminal Appeal 118 of 2014|
|Parties:||Margaret Musimbi v Republic|
|Date Delivered:||16 Dec 2014|
|Court:||High Court at Eldoret|
|Judge(s):||Cecilia Wathaiya Githua|
|Citation:||Margaret Musimbi v Republic  eKLR|
|Advocates:||M/s Mwaniki for the state|
|Case History:||An Appeal arising from the original conviction and sentence in Criminal Case No. 4999 of 2014 in the Chief Magistrates Court at Eldoret- Hon. M. Njage(Senior Resident Magistrate|
|Advocates:||M/s Mwaniki for the state|
|History Docket No:||Criminal Case No. 4999 of 2014|
|History Magistrate:||M. Njage|
|History County:||Uasin Gishu|
|Case Outcome:||Appeal allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CR. APPEAL 118 OF 2014
(An Appeal arising from the original conviction and sentence in Criminal Case No. 4999 of 2014 in the Chief Magistrates Court at Eldoret- Hon. M. Njage(Senior Resident Magistrate).
In the written submissions filed on the appellant’s behalf on 29th August 2014,
Mr. Momanyi contended that the appellant’s plea was equivocal as the learned trial magistrate did not enquire whether the appellant fell within the exceptions contained in Section 7(3) of the Alcoholic Drinks Control Act (the Act) and that the facts read to the appellant did not disclose the offence charged as they did not state how the appellant was found dealing with the changaa; that possession of alcoholic drinks is not an offence under the Act. Counsel further argued that the response of “Ni kweli or “it is true” should never be construed as an admission of an offence.
In support of his submissions, Mr. Momanyi, relied on the following authorities:-
I find that though the accused was charged with the offence of dealing in changaa without a license, the facts supporting the charges which were stated to the court by the prosecution and which the appellant confirmed were true thus her conviction did not disclose how the accused was found dealing with the said changaa. They did not allege that the accused dealt with the changaa in question in any way by for instance offering it for sale, transporting or distributing it.
The facts only alleged that on 6th July, 2014, police officers went into the appellant’s home and recovered 120 liters of changaa for which she was not licensed.
“An act of buying and selling; the purchase and exchange of something for profit.…an arrangement for mutual benefit.…”
or “To distribute (something); to transact business with a person or entity.…”
I am inclined to agree with Mr. Momanyi’s submissions that dealing was an essential ingredient of the offence and the manner in which the appellant allegedly dealt with the 120 litres of changaa found in her house ought to have been disclosed in the particulars and the facts supporting the charge in order to complete the offence.
Such disclosure was important because mere possession of alcoholic drinks without a license has not been made an offence under the Alcoholic Drinks Control Act.
Although it can be validly argued that the quantity of changaa allegedly in possession of the appellant was too large as to give rise to an inference that it must have been for sale not just for the accused’s own consumption. Thus bringing in element of dealing. It was an error for the prosecution not to expressingly state the manner in which the appellant allegedly dealt with the changaa in the particulars and facts supporting the charge. This is the only way that the appellant would have been informed of the nature of the allegations made against her in order for her to either refuse or admit the said allegations. A criminal charge cannot be founded on suppositions or possibilities.
A charge would in fact be defective if its particulars does not give reasonable information regarding the nature of the offence charged – See Section 134 of the Criminal Procedure Code.
In the instant case, the appellant pleaded to facts which did not disclose or support the offence charged.
The learned trial magistrate ought to have satisfied herself that the facts supporting the charges disclosed the offence charged before requiring the appellant to plead to them. This was regrettably not done with the result that the appellant’s plea of guilty cannot be said to have been unequivocal. In the premises; I find that her conviction was unsafe and it cannot be allowed to stand.
I accordingly, find merit in this appeal and it is hereby allowed. The appellants conviction is hereby quashed and sentence aside. She will be released forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVEREDAT ELDORET THIS 16TH DAY OF DECEMBER, 2014
In the presence of:
M/s Mwaniki for the state
Paul Ekitela- Court Clerk