Mercy Chepkwony v Republic [2015] KEHC 5513 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CRIMINAL REVISION NO. 5  OF 2015

MERCY CHEPKWONY................…..............................APPLICANT

VERSUS

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

(Arising from Bomet Resident Magistrate's Court

Criminal Case No. 119  of 2015)

R U L I N G

This file was called for following my visit to the Kericho G.K. Women's Prison on 26th March, 2015. Upon perusal of the record I note that the applicant was convicted of two offences namely;

Being in possession of Kangara and sentenced to one(1) year imprisonment.

Being in possession of chang'aa and sentenced to six(6) months imprisonment.

The two offences were brought underSection 27(1) (2) as read with Section 27(4)of the Alcoholic Drinks Control Act.

First of all there is no offence under the said Act known as being in possession of a substance used for distilling chang'aa.  Further, Kangara is not an alcoholic drink under Section 2 of the Act.  She should not have pleaded to count 1.  I therefore quash the conviction and set aside the sentence on count 1.

For count 2 – the conviction is upheld.  She was sentenced to six(6) months imprisonment with no option of a fine yet she was a first offender.  I find that to be too harsh.  She has served two(2) months and one(1) week.

I set aside the sentence and substitute it with a sentence of the period already served. She will be released forthwith unless lawfully held under a separate warrant.

Dated and signed this 10th  day of April, 2015

H.I. ONG'UDI

JUDGE