REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E052 OF 2023
JAMES BUNDI MUKONO…………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. L.W. Kabaria PM, in Gichugu Magistrates Court Criminal Case No. E759 of 2023 delivered on 8/11/2023)
J U D G M E N T
1. This appeal by James Bundi Mukono is on sentence only. The appeal arises from the conviction of the appellant for the offence of being in possession of alcoholic drink that does not conform to the requirement of the Alcoholic Drinks Act contrary to section 27(1)(b) of the Alcoholic Drinks Control Act (Cap. 121) Laws of Kenya. The particulars were that on 6/11/2023 at Kainjogu village, Gatu sublocation in Kirinyaga East sub-County within Kirinyaga County he was found in possession of illicit brew “makabo” to wit 40 litres, an alcoholic drink that does not conform to the requirement of the Alcoholic Drinks Control Act.
2. The appellant entered a plea of guilty and upon conviction he was sentenced to serve five years’ imprisonment without option of fine.
3. The grounds of appeal are:
a. that the learned trial magistrate erred in law and fact by passing an excessive and harsh sentence without considering the circumstances surrounding the offence.
b. that the learned trial magistrate erred in law and fact by failing to consider the appellant’s mitigation factors in sentencing.
c. that the learned trial magistrate erred in law and fact by failing to consider the quantity of the said liquor while passing the sentence.
4. He therefore prays that the appeal be allowed, the sentence be reduced and given an option of a fine or be placed on non-custodial sentence.
5. His submissions in support of the grounds of appeal are basically a reiteration of his grounds of appeal.
6. In response, learned counsel for the respondent opposed the appeal on grounds that appellant is a serious repeat offender with four previous convictions viz:
a. Cr. 1024 of 2019 where he was fined KShs 12,000/= in default to serve 2 months imprisonment,
b. Cr. E414 of 2021 where he was fined KShs 30,000/= in default to serve 2 months imprisonment,
c. Cr. E124 of 2022 where he was sentenced to 6 months imprisonment, and
d. Cr. E677 of 2022 where he was sentenced to one-year imprisonment.
7. Learned counsel submits that considering these previous records, the maximum sentence of 5 years imprisonment is proportionate as a deterrence. Further the law does not give regard to the quantity of the alcoholic drink as submitted by the appellant but that the same may be material in mitigation. He submits that the previous sentences were lenient and the appellant squandered the opportunity for self-correction and reform and in those circumstances, the sentence imposed herein is reasonable.
8. Learned counsel cited the case of Kimutai Kigen v Republic [2020] KEHC 8714 (KLR) where on a similar charge the High Court in its conclusion remarked that:
“Having considered the sentence under section 27(4) of the Alcoholic Drinks Control Act for which the appellant was liable upon conviction for the offence charged, being “a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both” and his previous convictions for offences of similar nature, I would agree with the trial court that the a custodial sentence was warranted. In fact, I considered that the trial court was too lenient in sentencing the appellant to imprisonment for two (2) years only and, had it been this court trying the matter, a stiffer sentence might have been passed. This court may not, however, interfere with the sentence merely because, it would have passed a different sentence had it been trying the case, and there was in any event no application by the prosecution for a review by enhancement of the sentence of the trial court.”
9. He therefore urged the court to dismiss the appeal.
10. This appeal is in line with section 348 of the Criminal Procedure Code (Cap. 75) Laws of Kenya which provides that:
“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”
11. The appellant is asking this court on appeal to interfere with the sentence imposed by the trial court as being harsh and excessive. The principles which guide an appellate court while considering whether or not to interfere with the sentence imposed by the trial court are as set out in the case of Wanjema v R (1971) KLR 493, as follows:
“An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
12. The basis of the trial court passing a sentence of 5 years imprisonment without the option of a fine upon the appellant was that he had previous records of relevant conviction for the same offence. When the record of previous convictions was put to the court by the learned prosecution counsel, the appellant in response informed the court that he was only convicted in one of them and the rest he was acquitted. The court then remarked that the physical records had to be made available and adjourned the case to the following day.
13. The following day, the learned prosecutor presented the records to court and the appellant conceded that they were his records. He then offered his mitigation in which he said he does not brew the alcohol to sell. In this case, he said that the land was sold in which case they had to move the house. He brewed the alcohol so that they could move the house. He said he didn’t think he would brew alcohol again.
14. The trial court considered his mitigation and his previous records of convictions and passed the sentence. In the circumstances of this case, that sentence would not be for interference.
15. However, as a first appellate court, this court is required to take a wholistic look at the trial court record and arrive at its own conclusion, bearing in mind that it did not have the opportunity to have a first impression of the evidence tendered before the trial court. The Court of Appeal in Okeno versus Republic (1972) EA 32 gave this guidance thus;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
16. The conviction of the appellant herein was based on a plea of guilty. I have perused the lower court record and I am not satisfied that even as he pleaded guilty to the charge, the same satisfied the requirements of the law and can be considered as having been unequivocal.
17. The procedure for plea taking is set out in section 207 of the Criminal Procedure Code (Cap. 75) Laws of Kenya and elaborated in the case of Adan v. R (1973) EA 445, which by way of summary sated as follows:
a. 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;
b. The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;
c. 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;
d. If the accused does not agree the facts or raises any questions of his guilt his reply must be recorded and change of plea entered;
e. 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.
18. The function of a charge as prescribed in section 134 of the Criminal Procedure Code is to inform the accused of the offence that he is alleged to have committed. It provides as follows:
“134. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
19. Section 27 of the Act under which the appellant was charged provides that:
1) No person shall—
a) manufacture, import or distribute; or
b) possess, an alcoholic drink that does not conform to the requirements of this Act.
2) Subsection (1) shall not apply to a person who—
a) is authorized under this Act to be in possession of the alcoholic drink; or
b) has possession of the alcoholic drink in a premises licensed under this Act.
3) The manufacture or distillation of all spirituous liquor prior to this Act referred to as Chang’aa shall conform to the prescribed standards or the requirements of this Act.
4) A person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both.”
20. For the offence under section 27(1)(b), under which the appellant was charged to be established, the prosecution must show that:
a. the culprit,
b. was in possession,
c. of an alcoholic drink,
d. the alcoholic drink does not conform to the requirements under the Act.
21. In the case before the trial court, there was evidence that some 40 litres of a certain substance were found in possession of the appellant. There is no dispute on that issue. However, proof that it was an alcoholic drink as provided for under the Act was not made. The Act defines an alcoholic drink and alcohol in section 2 thus:
“alcoholic drink” includes alcohol, spirit, wine, beer traditional alcoholic drink, and any one or more of such varieties containing one-half of one percent or more of alcohol by volume, including mixed alcoholic drinks, and every liquid or solid, patented or not, containing alcohol, spirits, wine, or beer and capable of being consumed by a human being;
“alcohol” means the product known as ethyl alcohol or any product obtained by fermentation or distillation of any fermented alcoholic product, rectified either once or more often, whatever the origin, and shall include synthetic ethyl alcohol, but shall not include methyl alcohol and alcohol completely denatured in accordance with the prescribed formulas;
22. It follows that for the court to be satisfied that the substance was an alcoholic drink, the same has to conform to the definition above. There is no indication in the particulars of the charge of how the liquid substance was determined to be an alcoholic drink. Section 57 of the Act provides for how the same can be determined by way of analysis of an alcoholic drink or “thing” by an authorized officer while section 64 provides for how evidence of the analysis may be adduced thus:
“S. 57. An authorised officer who has analyzed or examined an alcoholic drink or thing under this Act, or a sample of it, shall issue a certificate or report setting out the results of the analysis or examination.”
“S. 64 (1) …
(2) Subject to this Part, a certificate or report purporting to be signed by an officer stating that the officer analyzed anything to which this Act applies and stating the results of the analysis, shall be admissible in evidence in any prosecution for an offence under this Act without proof of the signature or official character of the person appearing to have signed the certificate or report.
(3) The certificate or report may not be received in evidence unless the party intending to produce it has, before the trial, given the party against whom it is intended to be produced notice of not less than seven days of that intention together with a copy of the certificate or report.
(4) The party against whom the certificate or report provided for under subsection (3) is produced may, with leave of the court, require the attendance of the officer for purposes of cross examination.
(5) …”
23. My understanding of these two sections read together with the definition of an alcoholic drink lead me to find that for one to be properly charged of being in possession of an alcoholic drink, the prosecution must show that the thing he was in possession of was analysed and found to be an alcoholic drink as defined under the Act. The use of the words “thing” and “anything” in those sections besides the word alcoholic drink means that the substance found in possession of a person may not necessarily be an alcoholic drink. There is no indication in the facts narrated by the learned prosecutor that the 40 litres or a sample thereof of the “thing” the appellant was found in possession was subjected to the analysis alluded to under section 57 of the Act and a certificate thereof prepared and produced before the court as provided for under section 64 of the Act.
24. The facts narrated before the trial court before the appellant’s conviction do not show that there was evidence that the “thing” the appellant was charged of being in possession of and produced in court as exhibit 1 was an alcoholic drink as defined under the Act. It is only an alcoholic drink as defined that is required to conform to the requirements under the Act.
25. Another deficiency was that the charge indicated that the substance was “an alcoholic drink that does not conform to the requirements of the Act.” But “the requirements of the Act” were not set out in the particulars of the charge nor in the facts read by the learned prosecutor. In the circumstances, I am not satisfied that the charge contained such particulars as were necessary for giving reasonable information to the appellant as to the nature of the offence charged as required under section 207 of the CPC. He could therefore not have made an unequivocal plea of guilty to the charge.
26. Whereas section 348 CPC provides that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, it has been held that, that provision is not an absolute bar to challenging a conviction founded on a guilty plea on any other ground. See the case of Koech v Republic [2023] KEHC 1176 (KLR) where the offence as well as the facts of the case and proceedings before the trial court were very similar to the present case.
27. In the case of Alexander Lukoye Malika v Republic [2015] eKLR the Court of Appeal outlined some situations in which a conviction based on a plea of guilty can be interfered with. It said:
“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also, where upon admitted facts the appellant could not in law have been convicted of the offence charged.”
28. In the present case, I find that the appellant could not have been convicted of the offence charged. It has been assumed by law enforcement agencies that any person found in possession of a traditional alcoholic drink, by whichever name it goes, which they have labelled “illicit brew” commits an offence under the Act. That is not the case. The offence under section 27(1)(b) of the Act is being in possession of an alcoholic drink that does not conform to the requirements of the Act, which requirements, as pointed out above have not been set out under the charge.
29. In the result, I find that appeal succeeds. The conviction is quashed, the sentence is set aside and the appellant is to be set at liberty unless otherwise legally held.
30. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 11th day of April 2025 in the presence of:
The appellant in person in court.
Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E052 OF 2023
JAMES BUNDI MUKONO…………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. L.W. Kabaria PM, in Gichugu Magistrates Court Criminal Case No. E759 of 2023 delivered on 8/11/2023)
J U D G M E N T
1. This appeal by James Bundi Mukono is on sentence only. The appeal arises from the conviction of the appellant for the offence of being in possession of alcoholic drink that does not conform to the requirement of the Alcoholic Drinks Act contrary to section 27(1)(b) of the Alcoholic Drinks Control Act (Cap. 121) Laws of Kenya. The particulars were that on 6/11/2023 at Kainjogu village, Gatu sublocation in Kirinyaga East sub-County within Kirinyaga County he was found in possession of illicit brew “makabo” to wit 40 litres, an alcoholic drink that does not conform to the requirement of the Alcoholic Drinks Control Act.
2. The appellant entered a plea of guilty and upon conviction he was sentenced to serve five years’ imprisonment without option of fine.
3. The grounds of appeal are:
a. that the learned trial magistrate erred in law and fact by passing an excessive and harsh sentence without considering the circumstances surrounding the offence.
b. that the learned trial magistrate erred in law and fact by failing to consider the appellant’s mitigation factors in sentencing.
c. that the learned trial magistrate erred in law and fact by failing to consider the quantity of the said liquor while passing the sentence.
4. He therefore prays that the appeal be allowed, the sentence be reduced and given an option of a fine or be placed on non-custodial sentence.
5. His submissions in support of the grounds of appeal are basically a reiteration of his grounds of appeal.
6. In response, learned counsel for the respondent opposed the appeal on grounds that appellant is a serious repeat offender with four previous convictions viz:
a. Cr. 1024 of 2019 where he was fined KShs 12,000/= in default to serve 2 months imprisonment,
b. Cr. E414 of 2021 where he was fined KShs 30,000/= in default to serve 2 months imprisonment,
c. Cr. E124 of 2022 where he was sentenced to 6 months imprisonment, and
d. Cr. E677 of 2022 where he was sentenced to one-year imprisonment.
7. Learned counsel submits that considering these previous records, the maximum sentence of 5 years imprisonment is proportionate as a deterrence. Further the law does not give regard to the quantity of the alcoholic drink as submitted by the appellant but that the same may be material in mitigation. He submits that the previous sentences were lenient and the appellant squandered the opportunity for self-correction and reform and in those circumstances, the sentence imposed herein is reasonable.
8. Learned counsel cited the case of Kimutai Kigen v Republic [2020] KEHC 8714 (KLR) where on a similar charge the High Court in its conclusion remarked that:
“Having considered the sentence under section 27(4) of the Alcoholic Drinks Control Act for which the appellant was liable upon conviction for the offence charged, being “a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both” and his previous convictions for offences of similar nature, I would agree with the trial court that the a custodial sentence was warranted. In fact, I considered that the trial court was too lenient in sentencing the appellant to imprisonment for two (2) years only and, had it been this court trying the matter, a stiffer sentence might have been passed. This court may not, however, interfere with the sentence merely because, it would have passed a different sentence had it been trying the case, and there was in any event no application by the prosecution for a review by enhancement of the sentence of the trial court.”
9. He therefore urged the court to dismiss the appeal.
10. This appeal is in line with section 348 of the Criminal Procedure Code (Cap. 75) Laws of Kenya which provides that:
“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”
11. The appellant is asking this court on appeal to interfere with the sentence imposed by the trial court as being harsh and excessive. The principles which guide an appellate court while considering whether or not to interfere with the sentence imposed by the trial court are as set out in the case of Wanjema v R (1971) KLR 493, as follows:
“An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
12. The basis of the trial court passing a sentence of 5 years imprisonment without the option of a fine upon the appellant was that he had previous records of relevant conviction for the same offence. When the record of previous convictions was put to the court by the learned prosecution counsel, the appellant in response informed the court that he was only convicted in one of them and the rest he was acquitted. The court then remarked that the physical records had to be made available and adjourned the case to the following day.
13. The following day, the learned prosecutor presented the records to court and the appellant conceded that they were his records. He then offered his mitigation in which he said he does not brew the alcohol to sell. In this case, he said that the land was sold in which case they had to move the house. He brewed the alcohol so that they could move the house. He said he didn’t think he would brew alcohol again.
14. The trial court considered his mitigation and his previous records of convictions and passed the sentence. In the circumstances of this case, that sentence would not be for interference.
15. However, as a first appellate court, this court is required to take a wholistic look at the trial court record and arrive at its own conclusion, bearing in mind that it did not have the opportunity to have a first impression of the evidence tendered before the trial court. The Court of Appeal in Okeno versus Republic (1972) EA 32 gave this guidance thus;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
16. The conviction of the appellant herein was based on a plea of guilty. I have perused the lower court record and I am not satisfied that even as he pleaded guilty to the charge, the same satisfied the requirements of the law and can be considered as having been unequivocal.
17. The procedure for plea taking is set out in section 207 of the Criminal Procedure Code (Cap. 75) Laws of Kenya and elaborated in the case of Adan v. R (1973) EA 445, which by way of summary sated as follows:
a. 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;
b. The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;
c. 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;
d. If the accused does not agree the facts or raises any questions of his guilt his reply must be recorded and change of plea entered;
e. 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.
18. The function of a charge as prescribed in section 134 of the Criminal Procedure Code is to inform the accused of the offence that he is alleged to have committed. It provides as follows:
“134. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
19. Section 27 of the Act under which the appellant was charged provides that:
1) No person shall—
a) manufacture, import or distribute; or
b) possess, an alcoholic drink that does not conform to the requirements of this Act.
2) Subsection (1) shall not apply to a person who—
a) is authorized under this Act to be in possession of the alcoholic drink; or
b) has possession of the alcoholic drink in a premises licensed under this Act.
3) The manufacture or distillation of all spirituous liquor prior to this Act referred to as Chang’aa shall conform to the prescribed standards or the requirements of this Act.
4) A person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both.”
20. For the offence under section 27(1)(b), under which the appellant was charged to be established, the prosecution must show that:
a. the culprit,
b. was in possession,
c. of an alcoholic drink,
d. the alcoholic drink does not conform to the requirements under the Act.
21. In the case before the trial court, there was evidence that some 40 litres of a certain substance were found in possession of the appellant. There is no dispute on that issue. However, proof that it was an alcoholic drink as provided for under the Act was not made. The Act defines an alcoholic drink and alcohol in section 2 thus:
“alcoholic drink” includes alcohol, spirit, wine, beer traditional alcoholic drink, and any one or more of such varieties containing one-half of one percent or more of alcohol by volume, including mixed alcoholic drinks, and every liquid or solid, patented or not, containing alcohol, spirits, wine, or beer and capable of being consumed by a human being;
“alcohol” means the product known as ethyl alcohol or any product obtained by fermentation or distillation of any fermented alcoholic product, rectified either once or more often, whatever the origin, and shall include synthetic ethyl alcohol, but shall not include methyl alcohol and alcohol completely denatured in accordance with the prescribed formulas;
22. It follows that for the court to be satisfied that the substance was an alcoholic drink, the same has to conform to the definition above. There is no indication in the particulars of the charge of how the liquid substance was determined to be an alcoholic drink. Section 57 of the Act provides for how the same can be determined by way of analysis of an alcoholic drink or “thing” by an authorized officer while section 64 provides for how evidence of the analysis may be adduced thus:
“S. 57. An authorised officer who has analyzed or examined an alcoholic drink or thing under this Act, or a sample of it, shall issue a certificate or report setting out the results of the analysis or examination.”
“S. 64 (1) …
(2) Subject to this Part, a certificate or report purporting to be signed by an officer stating that the officer analyzed anything to which this Act applies and stating the results of the analysis, shall be admissible in evidence in any prosecution for an offence under this Act without proof of the signature or official character of the person appearing to have signed the certificate or report.
(3) The certificate or report may not be received in evidence unless the party intending to produce it has, before the trial, given the party against whom it is intended to be produced notice of not less than seven days of that intention together with a copy of the certificate or report.
(4) The party against whom the certificate or report provided for under subsection (3) is produced may, with leave of the court, require the attendance of the officer for purposes of cross examination.
(5) …”
23. My understanding of these two sections read together with the definition of an alcoholic drink lead me to find that for one to be properly charged of being in possession of an alcoholic drink, the prosecution must show that the thing he was in possession of was analysed and found to be an alcoholic drink as defined under the Act. The use of the words “thing” and “anything” in those sections besides the word alcoholic drink means that the substance found in possession of a person may not necessarily be an alcoholic drink. There is no indication in the facts narrated by the learned prosecutor that the 40 litres or a sample thereof of the “thing” the appellant was found in possession was subjected to the analysis alluded to under section 57 of the Act and a certificate thereof prepared and produced before the court as provided for under section 64 of the Act.
24. The facts narrated before the trial court before the appellant’s conviction do not show that there was evidence that the “thing” the appellant was charged of being in possession of and produced in court as exhibit 1 was an alcoholic drink as defined under the Act. It is only an alcoholic drink as defined that is required to conform to the requirements under the Act.
25. Another deficiency was that the charge indicated that the substance was “an alcoholic drink that does not conform to the requirements of the Act.” But “the requirements of the Act” were not set out in the particulars of the charge nor in the facts read by the learned prosecutor. In the circumstances, I am not satisfied that the charge contained such particulars as were necessary for giving reasonable information to the appellant as to the nature of the offence charged as required under section 207 of the CPC. He could therefore not have made an unequivocal plea of guilty to the charge.
26. Whereas section 348 CPC provides that no appeal is allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, it has been held that, that provision is not an absolute bar to challenging a conviction founded on a guilty plea on any other ground. See the case of Koech v Republic [2023] KEHC 1176 (KLR) where the offence as well as the facts of the case and proceedings before the trial court were very similar to the present case.
27. In the case of Alexander Lukoye Malika v Republic [2015] eKLR the Court of Appeal outlined some situations in which a conviction based on a plea of guilty can be interfered with. It said:
“A court may only interfere with a situation where an accused person has pleaded guilty to a charge where the plea is imperfect, ambiguous or unfinished such that the trial court erred in treating it as a plea of guilty. Another situation is where an accused person pleaded guilty as a result of mistake or misapprehension of the facts. An appellate court may also interfere where the charge laid against an accused person to which he has pleaded guilty disclosed no offence known to law. Also, where upon admitted facts the appellant could not in law have been convicted of the offence charged.”
28. In the present case, I find that the appellant could not have been convicted of the offence charged. It has been assumed by law enforcement agencies that any person found in possession of a traditional alcoholic drink, by whichever name it goes, which they have labelled “illicit brew” commits an offence under the Act. That is not the case. The offence under section 27(1)(b) of the Act is being in possession of an alcoholic drink that does not conform to the requirements of the Act, which requirements, as pointed out above have not been set out under the charge.
29. In the result, I find that appeal succeeds. The conviction is quashed, the sentence is set aside and the appellant is to be set at liberty unless otherwise legally held.
30. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 11th day of April 2025 in the presence of:
The appellant in person in court.
Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE