A woman convicted of possessing alcoholic drinks that fail to meet legal standards has had her three-year prison sentence overturned on appeal.
Instead, the High Court at Bomet replaced the sentence with a fine of Sh200,000 with a default term of one year in jail.
Emily Chelangat Towett was charged under section 27(1)(b) as read with section 27(4) of the Alcoholic Drinks Control Act after she pleaded guilty before the trial court.
The penal provision carries a maximum penalty of a fine not exceeding Sh2 million, imprisonment for a term not exceeding five years, or both.
The magistrate sentenced her to three years’ imprisonment, a decision she challenged.
Through a memorandum of appeal dated July 8, Towett asked the High Court to vacate the custodial sentence and substitute it with a non-custodial penalty.
In opposing the appeal, the respondent pointed to the appellant’s prior run-in with the law.
Through written submissions dated July 29, the prosecution told the court that Towett had previously been charged with a similar offence, convicted and sentenced to pay a fine of Sh50,000.
“That being a habitual offender, the trial court did not err when it sentenced the appellant to three years imprisonment,” the respondent argued.
Justice Julius Ng’arng’ar disagreed.
The judge acknowledged that sentencing is a matter for the trial court's discretion and appellate courts do not easily interfere.
He cited a Court of Appeal decision which states that an appeal court can only change a sentence if it is clearly excessive, if the trial court ignored an important factor, considered something it should not have, or applied the wrong legal principle.
Applying that test, the judge ruled that the three-year term was excessive.
"I have considered the circumstances of this case, the appellant's mitigation and the fact that the appellant had previously been convicted on the same offence where she was sentenced to pay a fine of Sh50,000," he observed.
"Bearing the same in mind, it is my finding that the sentence by the trial court was harsh."
In his ruling, the judge set aside the prison term and imposed a fine of Sh200,000, with a default sentence of one year’s imprisonment.
The appellant was given 14 days to exercise right of further appeal.
