Republic v Benard Kioko Muia [2015] KEHC 6159 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL REVISION  NO. 3 OF 2015

REPUBLIC

VERSUS

BENARD KIOKO MUIA ……………..  APPLICANT

RULING ON REVISION

The SRMC Tawa Criminal Case No. 226/12- Republic versus Bernard Kioko Muia was referred to the High Court for revision by the Ag. SRM Tawa Law Courts.

The Accused was charged with the offence of being in possession of alcoholic drinks contrary to section 27 (1) (b) as read with sub section 4 of the Alcoholic Drinks Control Act 2010.

The particulars of the offence were that on the 10th day of July 2012 at Kitandini village, Kalimani Location in Mbooni East within Makueni County was found being in possession of alcoholic drinks namely Karubu to wit 20 litres without a licence.

The Accused pleaded guilty and was convicted and sentenced to a fine of Kshs.50,000/= in default three years imprisonment.

The default sentence is illegal.  The default sentence should not have exceeded one year.  Section 28 (2) of the Penal Code provides as follows:

“In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under theDetention Camps Actordered by a court in respect of the non-payment of any sum adjudged to be paid for costs undersection 32or compensation undersection 31or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale-

Amount     Maximum Period

Not exceeding Sh.500… …       ..          14 days

Exceeding Sh.500 but not

exceeding Sh.2,500…     …        …                    1 month

Exceeding Sh.2,500 but not exceeding       3 months

Sh.15,000    …        …        …

Exceeding Sh. 15,000 but not exceeding

Sh. 50,000 …         …        …..

Exceeding Sh.50,000   12 months.”

Taking into account the mitigation and the period of three months already served, I reduce the sentence to the period already served.

………………………………………

B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 12thday of February 2015.

………………………………………

B. THURANIRA JADEN

JUDGE