Consolata Nebere Barasa v Republic [2015] KEHC 1711 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

HC CR. REVISION NO. 13 OF 2015

CONSOLATA NEBERE BARASA--------------------------------- APPLICANT

VERSUS

REPUBLIC------------------------------------------------------------- RESPONDENT

RULING

In the decision of Odero Vs Republic (1984) KLR 621 Bratt and  Mbaya JJ Stated

“In cases where a person has been charged with and convicted of two or more counts involving the same transaction, the practice is to direct that the sentences should run concurrently.”

And that is the General Rule.

Here, the Applicant was charged with 2(two) counts. First that she was selling Alcoholic Drink without a Licence contrary to Section 7(1)9b) as read with Section 62 of The Alcoholic Drink Act No. 4 of 2010. In Count 2, she faced a charge of being in possession of Alcoholic Drink without a Licence contrary to Section 7(1)(b) as read with Section 62 of The Alcoholic Drinks Act No. 4 of 2010.

Upon pleading Guilty on both counts, the State Counsel read out the facts as follows;-

“ Sergeant Wanyama and APC Kiprotich tipped that, the Accused dealt with illicit brew Kangara and changaa. She did not have a licence.  22 litres of changaa and 100 litres of Kangara.  I produce the same as exhibits.”

Those brief facts suggest that the two counts involved one transaction. But the Hon. Learned Trial Magistrate upon imposing a fine of Kshs. 22,000/- in default 2 months imprisonment in Count 1 and a fine of Kshs. 100,000/- in default 3 months imprisonment in Count 2, ordered that the sentences would be consecutive.  The Learned Magistrate did not explain why she departed from a general principle of sentencing and thereby affronted the principle.

In Revision, I do hereby set aside the order making the sentence consecutive and do hereby order that they run concurrently.

Dated, signed and delivered at Busia this 21ST  Day of October 2015.

F. TUIYOTT

J U D G E

In the presence of :-

Oile  - C/Assistant

N/A   - For the State

Applicant in person