Republic v Kibarisho Chepukel [2018] KEHC 478 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL REVISION NO. 27 OF 2018

REPUBLIC......................................................APPLICANT

-VERSUS-

KIBARISHO CHEPUKEL........................RESPONDENT

(Being Revision of the Order of the Resident Magistrate dated 16th January, 2018 in the Chief Magistrate Court at Narok, in Criminal Case No. 52 of 2018, Republic V. Kibarisho Chepukel).

ORDER ON REVISION

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL REVISION NO. 27 OF 2018

REPUBLIC.............................................................APPLICANT

-VERSUS-

KIBARISHO CHEPUKEL...............................RESPONDENT

(Being Revision of the Order of the Resident Magistrate dated 16th January, 2018 in the Chief Magistrate Court at Narok, in Criminal Case No. 52 of 2018, Republic V. Kibarisho Chepukel).

ORDER ON REVISION

1. This matter has been reported by the Chief Magistrate (Hon. W.A. Juma) for orders in respect of the order of the learned Resident Magistrate (Hon. A.N. Sisenda) in which she convicted the respondent on his own plea of guilty for being drunk and disorderly contrary to Section 33 (i) (ii) of the Alcoholic Drinks Control Act No. 4 of 2010.  She then proceeded to sentence the respondent by placing him on a community service (C.S.O.) for one day at a place to be designated by the probation officer.

2. In her report to this court the Chief Magistrate has indicated that the trial court lacked jurisdiction to entertain and determine this matter.  In this regard, the definition of “magistrate” in the interpretation section of the Alcoholic Drinks Control Act in section 2 means “A magistrate who is above the rank of the Resident Magistrate.”

3. It therefore follows that Hon. Sisenda who holds the rank of Resident Magistrate did not have jurisdiction to entertain and determine this matter.

4. It also follows that the order made by the learned resident magistrate is null and void.

5. In the circumstances both the conviction and sentence are hereby quashed.

6. If fine was paid, it should be refunded.

7. Orders accordingly.

Order on revision dated this 30th  day of November, 2018

J.M. BWONWONGA

JUDGE

30/11/2018

1. This matter has been reported by the Chief Magistrate (Hon. W.A. Juma) for orders in respect of the order of the learned Resident Magistrate (Hon. A.N. Sisenda) in which she convicted the respondent on his own plea of guilty for being drunk and disorderly contrary to Section 33 (i) (ii) of the Alcoholic Drinks Control Act No. 4 of 2010.  She then proceeded to sentence the respondent by placing him on a community service (C.S.O.) for one day at a place to be designated by the probation officer.

2. In her report to this court the Chief Magistrate has indicated that the trial court lacked jurisdiction to entertain and determine this matter.  In this regard, the definition of “magistrate” in the interpretation section of the Alcoholic Drinks Control Act in section 2 means “A magistrate who is above the rank of the Resident Magistrate.”

3. It therefore follows that Hon. Sisenda who holds the rank of Resident Magistrate did not have jurisdiction to entertain and determine this matter.

4. It also follows that the order made by the learned resident magistrate is null and void.

5. In the circumstances both the conviction and sentence are hereby quashed.

6. If fine was paid, it should be refunded.

7. Orders accordingly.

Order on revision dated this 30th  day of November, 2018

J.M. BWONWONGA

JUDGE

30/11/2018