[1] Before the Court for determination is the Notice of Motion dated 24 th April 2026. It was brought by Daniel Cheriot (hereinafter, “the applicant”) pursuant to the provisions of Article 50(2)(q) of the Constitution for orders that an order be made for him to serve the remainder of his sentence as a non-custodial sentence. He averred that he was sentenced to pay a fine of Kshs. 60,000/= in default to serve 12 months’ imprisonment; and that he is a first offender aged 41 years. He therefore prayed to be given a second chance in life through non-custodial sentence.
[2] The Court called for and perused the original lower court file and it is manifest therefrom that the applicant was indeed arraigned before the lower court on a charge of manufacturing alcohol without a licence, contrary to Section 8(1)(a) as read with Section 64 of the Nandi County Alcoholic Drinks Control Act. The particulars thereof were that on the 8 th day of February 2026 at around 00:30 Hours at Kamungei Village in Kamungei Sublocation within Nandi County, he was found in the process of manufacturing changaa using 40 litres of kangara.
[3] In the alternative, the applicant was charged with dealing in alcoholic drinks without a licence contrary to Section 8(1)(b) as read with Section 64 of the Nandi County Alcoholic Drinks Control Act. It was alleged that he was found in possession of 40 litres of changaa in contravention of the said Act.
[4] The record further shows that he was required by the lower court to respond to both counts and upon his own admission thereof, he was convicted and sentence to pay a fine of Kshs. 30,000/= on each count, in default to serve 6 months’ imprisonment.
[5] Article 165 of the Constitution. Sub-articles (6) and (7) of Article 165 of the Constitution state:
(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 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 me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[6] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court ."
[7] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[8] The procedure for plea taking is set out in Section 207 of the Criminal Procedure Code, and the amplified in Adan v Republic [1973] E.A. 445 as follows :
“(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded;
(iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;
(iv) if the accused does not agree the facts or raises any question of his guilt his reply must be recorded and change of plea entered;
(v) if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded.”
[9] In this case, the applicant admitted the charge upon arraignment on 9 th February 2026, whereupon a plea of guilty was entered. The facts were thereafter narrated by the Prosecution Counsel and admitted by the applicant. He was accordingly convicted on his own plea on the basis of which the sentence was imposed. The record further shows that the applicant was given an opportunity to address the court in mitigation before being sentence.
[10] In giving the applicant the option to pay a fine the learned magistrate acted in compliance with Paragraph 2.3.13 of the Judiciary Sentencing Policy Guidelines, which states:
Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
[11] Accordingly, it is manifest that the plea-taking process was in accordance with the strictures of Section 207 of the Criminal Procedure Code and the steps listed in Adan v Republic (supra). As for the sentence imposed by the lower court, Section 64(1) of the Nandi County Alcoholic Drinks Control Act provides that:
Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.”
[12] Clearly, the sentence is lawful and within the range provided for in Section 64 of the applicable Act. Needless to add that sentence is in the discretion of the sentencing court. In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal had the following to say in respect of a criminal appeal which I find equally apt in revision applications on sentence such as the instant one:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[13] It is however notable that the learned magistrate convicted the applicant in respect of both the substantive count and the alternative count. That was improper. I find succor in the case of Moses Alusa Imbitsa v Republic [2016] eKLR in which it was held:
“When an accused person is charged with both the main count and an alternative, and the court finds him guilty or he pleads guilty to the main count, the alternative count becomes irrelevant. The court can only turn to the alternative count if it dismisses the main count. The trial magistrate was therefore in error in convicting the accused on the main count as well as the alternative count which had not even been read to him and sentenced him on both. This caused the applicant prejudice as well as injustice. He was denied the opportunity to plead to the alternative charge (which was unnecessary) but was convicted on it even without facts being read to him, admitting them or denying them.”
[14] Similarly, in Joseph Okumu v Republic [2017] KEHC 2358 (KLR)it was held that:
“…The right procedure is that if the trial court finds that the prosecution has established sufficient evidence for conviction in respect of the substantive charge, then it proceeds to convict and indicate on the record that it makes no findings on the alternative charge. An alternative charge is not a second count. It is simply an alternative where the prosecution is saying: if he did not commit the offence in the substantive charge, then he committed the offence in the alternative charge. However, if the prosecution proves the alternative charge and not the substantive charge, the court proceeds to convict and acquit the accused on the substantive charge.”
[15] The conviction recorded in respect of the alternative count is hereby quashed and the sentence imposed for that count is hereby set aside. The charge of manufacturing alcohol without a licence, contrary to Section 8(1)(a) as read with Section 64 of the Nandi County Alcoholic Drinks Control Act, being the substantive charge, is upheld along with the proceedings in respect thereof, including the conviction and sentence recorded by the lower court.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6 TH DAY OF AUGUST 2026
[2] The Court called for and perused the original lower court file and it is manifest therefrom that the applicant was indeed arraigned before the lower court on a charge of manufacturing alcohol without a licence, contrary to Section 8(1)(a) as read with Section 64 of the Nandi County Alcoholic Drinks Control Act. The particulars thereof were that on the 8 th day of February 2026 at around 00:30 Hours at Kamungei Village in Kamungei Sublocation within Nandi County, he was found in the process of manufacturing changaa using 40 litres of kangara.
[3] In the alternative, the applicant was charged with dealing in alcoholic drinks without a licence contrary to Section 8(1)(b) as read with Section 64 of the Nandi County Alcoholic Drinks Control Act. It was alleged that he was found in possession of 40 litres of changaa in contravention of the said Act.
[4] The record further shows that he was required by the lower court to respond to both counts and upon his own admission thereof, he was convicted and sentence to pay a fine of Kshs. 30,000/= on each count, in default to serve 6 months’ imprisonment.
[5] Article 165 of the Constitution. Sub-articles (6) and (7) of Article 165 of the Constitution state:
(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 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 me any order or give any direction it considers appropriate to ensure the fair administration of justice.
[6] Pursuant to the above provision, Section 362 of the Criminal Procedure Code provides that:
"The High court may call for and examine the records of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court ."
[7] Further to the foregoing, Section 364(1)(b) of the Criminal Procedure Code stipulates that:
"In the case of a proceeding in subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may ... in the case of any other order other than an order of acquittal, alter or reverse the order."
[8] The procedure for plea taking is set out in Section 207 of the Criminal Procedure Code, and the amplified in Adan v Republic [1973] E.A. 445 as follows :
“(i) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
(ii) the accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded;
(iii) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;
(iv) if the accused does not agree the facts or raises any question of his guilt his reply must be recorded and change of plea entered;
(v) if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded.”
[9] In this case, the applicant admitted the charge upon arraignment on 9 th February 2026, whereupon a plea of guilty was entered. The facts were thereafter narrated by the Prosecution Counsel and admitted by the applicant. He was accordingly convicted on his own plea on the basis of which the sentence was imposed. The record further shows that the applicant was given an opportunity to address the court in mitigation before being sentence.
[10] In giving the applicant the option to pay a fine the learned magistrate acted in compliance with Paragraph 2.3.13 of the Judiciary Sentencing Policy Guidelines, which states:
Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
[11] Accordingly, it is manifest that the plea-taking process was in accordance with the strictures of Section 207 of the Criminal Procedure Code and the steps listed in Adan v Republic (supra). As for the sentence imposed by the lower court, Section 64(1) of the Nandi County Alcoholic Drinks Control Act provides that:
Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.”
[12] Clearly, the sentence is lawful and within the range provided for in Section 64 of the applicable Act. Needless to add that sentence is in the discretion of the sentencing court. In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal had the following to say in respect of a criminal appeal which I find equally apt in revision applications on sentence such as the instant one:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[13] It is however notable that the learned magistrate convicted the applicant in respect of both the substantive count and the alternative count. That was improper. I find succor in the case of Moses Alusa Imbitsa v Republic [2016] eKLR in which it was held:
“When an accused person is charged with both the main count and an alternative, and the court finds him guilty or he pleads guilty to the main count, the alternative count becomes irrelevant. The court can only turn to the alternative count if it dismisses the main count. The trial magistrate was therefore in error in convicting the accused on the main count as well as the alternative count which had not even been read to him and sentenced him on both. This caused the applicant prejudice as well as injustice. He was denied the opportunity to plead to the alternative charge (which was unnecessary) but was convicted on it even without facts being read to him, admitting them or denying them.”
[14] Similarly, in Joseph Okumu v Republic [2017] KEHC 2358 (KLR)it was held that:
“…The right procedure is that if the trial court finds that the prosecution has established sufficient evidence for conviction in respect of the substantive charge, then it proceeds to convict and indicate on the record that it makes no findings on the alternative charge. An alternative charge is not a second count. It is simply an alternative where the prosecution is saying: if he did not commit the offence in the substantive charge, then he committed the offence in the alternative charge. However, if the prosecution proves the alternative charge and not the substantive charge, the court proceeds to convict and acquit the accused on the substantive charge.”
[15] The conviction recorded in respect of the alternative count is hereby quashed and the sentence imposed for that count is hereby set aside. The charge of manufacturing alcohol without a licence, contrary to Section 8(1)(a) as read with Section 64 of the Nandi County Alcoholic Drinks Control Act, being the substantive charge, is upheld along with the proceedings in respect thereof, including the conviction and sentence recorded by the lower court.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6 TH DAY OF AUGUST 2026