Thomas Magabe, Chacha Nyamohanga Shadrack & Titus Mwita v Republic [2014] KEHC 8800 (KLR)

REPUBLIC OF KENYA

IN  THE  HIGH COURT  AT HOMA BAY

CRIMINAL APPEAL NO.  43  OF  2014

CONSOLIDATED WITH

CRIMINAL APPEALS NOS. 44 AND 45 OF 2014

BETWEEN

THOMAS MAGABE ……………………………. 1ST APPELLANT

CHACHA NYAMOHANGA SHADRACK …... 2ND APPELLANT

TITUS MWITA ……………………………........ 3RD APPELLANT

AND

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

(Being an appeal from the original sentence in Criminal Case No. 517 of 2014 at Senior Resident Magistrate’s Court at Kehancha, Hon. R. Aganyo, RM dated on 17th July 2014)

JUDGMENT

The three appeals were consolidated as they arose from the same charge and conviction. The appellants were charged with the offence of being drunk and disorderly contrary to section 33(1) as read with section 33(2) of the Alcoholic Drinks Control Act, No 4 of 2010. They pleaded guilty and were sentenced to pay a fine of Kshs.500 and in default to serve 3 months in prison. They appeal against the sentence.

According to the record, after the conviction and mitigation, the learned magistrate adjourned the proceedings for the Probation Officer to interview the accused on the possibility of making a community service order.  The officer returned and noted that, “the 3 accused persons have been interviewed and they are asking for fines other than Community Service.”

In sentencing the accused, the learned magistrate observed as follows, “Considering the charge the 3 accused persons are facing, I note from their demeanor that they are not remorseful for their actions. In my view, they do not respect the Court’s decision to place them on CSO and seem not to acknowledge they are wrong. To teach them a lesson and to deter others, I fine them Kshs.500/- and sentence them to serve 3 months as provided by the law.”

I have considered the record and I think the learned magistrate’s finding was inconsistent with their mitigation. They were all remorseful and asked for leniency. It was therefore a misdirection on the part of the learned magistrate to allow the accused to consult the Probation Officer as to the nature of the sentence. It is the duty of the Probation Officer to present an objective report on the accused’s circumstances and for the Court to consider in light of the mitigation and thereafter impose the appropriate sentence.

I  therefore,  quash  the  sentence  and  substitute  it  with  an  order  of  Community Service for  each  of  the  accused  for  two  months. The fines paid shall be refunded to them.

DATED and DELIVERED at MIGORI this 15th day of August 2014

D. S.  MAJANJA

JUDGE

Mr Kisera instructed by Omonde Kisera and Company Advocates for the appellant.

Ms Owenga, Prosecution Counsel, instructed by the Office of the Director of Public Prosecution for the respondent.