Principal Magistrate Wajir Magistrates Court v Republic & another (Criminal Revision E149 of 2023) [2023] KEHC 18465 (KLR) (31 May 2023) (Ruling)
Neutral citation:
[2023] KEHC 18465 (KLR)
Republic of Kenya
Criminal Revision E149 of 2023
JN Onyiego, J
May 31, 2023
Between
Principal Magistrate Wajir Magistrates Court
Applicant
and
Republic
1st Respondent
Eunice Wambui Kirisho
2nd Respondent
Ruling
1.The second respondent together with nine others were on May 25, 2025 arraigned before the principal magistrates’ court Wajir charged with the offence of disorderly conduct contrary to Section 33(1) of the Alcoholic Drinks And Substances Control Act No 4 of 2010. Particulars were that on the 24th day of May 2023 at township Location in Wajir East sub-county within Wajir County they were all found to be disorderly persons who were shouting and staggering in public due to drunkenness.
2.Upon returning a plea of guilty, they were each sentenced to a fine of Kshs 5000 in default serve one month imprisonment. However, the trial magistrate having realized that the sentence meted out was illegal as it exceeded the legally provided for sentence, wrote a letter dated May 31, 2023 addressed to the deputy registrar seeking placement of the file before the honourable judge for revision and correction of the sentence.
3.I have considered the application herein initiated by the trial court’s own motion and the reasons stated thereof. This court’s authority has been summoned pursuant to Article 165 (6) and (7) of the Constitution and Sections 362 and 364 of the CPL. Article 165 (6) & (7) does provide;(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice”..
4.To operationalize the above provision, Section 362 went further to provide that;
5.Section 364 also does state as follows;
6.From the above quoted provisions, it is apparent that the high court has wide supervisory powers over a subordinate court which can be exercised on the court’s own motion or by application by any affected or interested party for the ends of justice to be met. In this case, the trial court did exercise her mandate properly so to correct an illegality committed during sentencing pursuant to Section 364(1) of the CPC.
7.Indeed, Section 33 (1) of the Alcoholic drinks and substances control Act of 2010 does provide as follows;1.Any person found by a police officer to be drunk and incapable or drunk and disorderly in or near a street, road, licensed premises, shop, hotel or other public place may be arrested without warrant and brought without unreasonable delay before a Magistrate.2.Any person convicted of being drunk and incapable or drunk and disorderly in or near a place referred to in subsection (1) shall be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding three months or to both”.
8.Having considered the penalty of Ksh 5000 imposed instead of Kshs 500, it is apparent that the sentence is illegal hence needs correction. Further considering that the 2nd respondent has been in custody from May 25, 2023 up to now, I am inclined to substitute the sentence with the period already served. Accordingly, the 2nd respondent (accused herein) is hereby set free forthwith unless otherwise lawfully held.ROA within 14 days.
Dated, signed and delivered virtually this 31st day of May 2023.………………………J.N. ONYIEGO JUDGE