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JudgmentRepublic VS ROSE NTABO2 min read

Republic VS ROSE NTABO

High Court at Kisii High Court · · Odera Teresa Achieng

1.  This matter is before me for revision under Section 362 of the Criminal Procedure Code . I have considered the proceedings of Hon P.Biwott Chief Magistrate Ogembo Law courts dated 30.7.25. 
2. The record of 30.7.25 indicates that Rose Ntabo (hereinafter referred to as the convict ) was charged with the offence of Manufacturing Alcoholic drinks contrary to Section 7(1) as read with Section 62 of the alcoholic drinks Act in Ogembo Criminal case no. 1042 of 2025 
3. Plea was taken on 30.7.26 and the convict  pleaded guilty and he was convicted on his own  plea. He was thereafter  sentenced to pay a fine of Ksh. 5000/= or one month imprisonment in default. 
4. After the convict was fined , the  Learned Trial Magistrate then realised  that the convict  pleaded guilty to a wrong charge as the interpretation was that he was in '' possession ' ' of    changaa instead of ' 'Manufacturing '' 5 litres of changaa and 40 litres of Kangara. He then declared himself to be functus officio and thus referred that matter to this court for revision. 
ANALYSIS AND DETERMINATION
5. I have considered the proceedings  of the lower court  matter the charge sheet and the sentence, It is true that upon sentencing the convict the Learned Trial Magistrate became functus officio in the matter before him .  The power of the High court to revise decisions of the lower court is found in Section 362 of the Criminal procedure Code, The said section    provides that  -T he High Court may call for and examine the record 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. 
6. It is clear that the charge that the Convict was facing was manufacturing of alcoholic drinks and not possession of the same and thus the interpretation by the court  assistant was wrong  and thus was not as per the charge sheet   . The plea herein was thus not unequivocal as per the principles set in the case of Adan –v- R  [1973] KLR 143 EA 445 .
7. I therefore declare the proceedings of 30.7.25 a nullity and i proceed to quash the conviction and sentence of the convict and i direct that fresh plea be taken Hon P. Biwott Chief Magistrate  Ogembo  law courts on 6.8.25 . 
8. . A production order to issue for the convict to appeal before court on 6.8.25
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