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|Case Number:||Misc Crim Appli 12 of 2006|
|Parties:||Susan Wanjiku Mutai v Republic|
|Date Delivered:||06 Nov 2006|
|Court:||High Court at Kericho|
|Judge(s):||Luka Kiprotich Kimaru|
|Citation:||Susan Wanjiku Mutai v Republic  eKLR|
Criminal Practice and Procedure-revision-where the applicant had been convicted of being in possession of chang’aa contrary to section 3(1) as read with section 4(1) of the Chang’aa Prohibition Act on her own plea of guilty and sentenced to serve four months imprisonment without option of a fine-where section 4(1) of the Chang’aa Prohibition Act provides that a person found guilty of the offence is liable to be fined a sum not exceeding Kshs. 10,000 or in default two years imprisonment or both-whether the applicant should have been sentenced to pay a fine first before the option of imprisonment was excercised
|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
Misc Crim Appli 12 of 2006
SUSAN WANJIKU MUTAI……………................................…………...APPLICANT
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