Republic v Leah Kilisho [2018] KEHC 476 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CRIMINAL REVISION NO. 39 OF 2018

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

VERSUS

LEAH KILISHO...................................................RESPONDENT

(Being Revision of the Order of the Resident Magistrate dated 20th February, 2018in the

Chief MagistrateCourt at Narok, in CriminalCase No. 226 of 2018, Republic V. Leah Kilisho).

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 the 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