Marion Kananu v Republic

the court to make a determination on whether failure to consider the accused’s mitigation, and call for a probation officer’s report amounted to unfair hearing. 4. The Respondent opposes the Application. It is the respondent’s case that the defects referred to are curable under section 382 of the criminal procedure code (CPC); that the framing of the charge complied with the requirements of section 134 of CPC; that the issues being raised now were not raised during trial and that no prejudice or miscarriage of justice occurred ,as the Applicant understood the charge. It is finally that the Applicant has not demonstrated that the trial magistrate acted on wrong principles. Determination 5. The High Court jurisdiction on revision is set out under section 362 to 367 of the Criminal Procedure Code (CPC), and the mandate as set out under Section 362 of CPC, is to ascertain the legality, correctness or propriety of any order, sentence passed by the subordinate court, or proceedings. 6. The Applicant’s complaint is that she was not supplied with the charge sheet; on count II the person charged appear as Erick Muriungi , and not her ; that the term “ illicit brew “ is unknown to the Act , and finally that her mitigation was not put into consideration. 7. Section 134 of the CPC sets out the components of a charge sheet. It provides as follows:-“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 charge, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”. 8. I have perused the lower court proceedings. The statements and the necessary particulars are clearly set out in the charge sheets. On the absence of the charge sheet, the record does not reflect any complaint by the Applicant about not having been supplied with the charge sheet . This is an issue that should have been raised before she took the plea. Further it is evident that the absence of the charge sheet did not stop her from answering to the charges and admitting them. On the name appearing on the second count where she was reffered to as Eluid Murruingi , again there is no evidence that the court was alerted to this error. Why would the Applicant respond to a charge that did not refer to her? Perhaps because she appreciated that the charges were referring to her and that is why she went ahead and admitted the same, notwithstanding the wrong reference. 9. On reference to an Illicit brew, it is true that such description does not exist in the Act. However, the Act does not list the brands of Alcohol. Instead it simply defines “alcohol” and “Alcoholic drink” , and under part IV, sets out specifications which an Alcoholic drink must have. 10. Section 2 of the Act defines “alcohol” as “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” . While “Alcoholic drink” is defined to include : “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.” 11. The operative word therefore in section 27 (1 ) (b ) is having Alcoholic drink “ that had neither a statement as to constituents nor health warning message”, by whatever named called. The specifications required are set out under sections 30 to 32 of the Act . Section 32 sets out the requirements on packaging of Alcoholic drink. One of the requirements is that on the package must https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14932/eng@2025-09-29 2

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appear the constituents of the Alcoholic drink and at least two health warning messages as specified under schedule II of the Act. The name of the Alcoholic drink could be ; “ ‘changaa’, ‘kangara’ or ‘wine’ for instance. Therefore, the name used to describe the alcoholic drink, is immaterial. The use of the word ‘illicit brew’ therefore did not affect the charge sheet in any way. 12. The test applicable when a court is called upon to determine firstly the existence of a defective charge, and secondly its effect on an applicant’s conviction is whether the conviction based on the alleged defective charge, occasioned a miscarriage of justice ,resulting in prejudice to the Applicant. 13. The test is aptly set out under section 382 of the CPC. The section provides: “ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 14. In the case of Isaac Nyoro Kimita & another vs. R [2014] eKLR the court of Appeal stated: “ In this case we are dealing with an alleged defective charge on account of how it was framed. We, therefore, need to decide whether or not the allegation in the particulars of the charge that the appellants “jointly” defiled the complainant, made the charge fatally defective. To determine this issue, what, in our view, is of crucial importance is whether or not the use of that term in any way prejudiced the appellants. In other words, did each appellant appreciate the charge against him or was either of them confused by the inclusion of the term “jointly” in the particulars of the charge?” (Emphasis added) 15. Further in Benard Ombuna v Republic [2019] KECA 994 (KLR) the court of Appeal adopted the findings of the supreme court of India in Willie (William) Slaney vs. State of Madhya Pradesh [A.I.R. 1956 Madras Weekly Notes 391], where it was held:- “Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities.” 16. Am satisfied that in the instant case that there was no prejudice that was occasioned by the absence of the charge sheet or reference to a different person on the 2nd count. In terms of section 382 of CPC if the Applicant did really consider such defects to be significant, she ought to have raised in the early part of the proceeding. On the other hand the use of the term “illicit brew” did not constitute a defect in the charge sheet as aforesaid. The sentence 17. On the sentence, it is the Applicant’s case that her mitigation was not considered, and the trial court failed to call for a probation report. 18. The trial record shows that the trial court took into account the Applicant’s mitigation. The court noted that she was a first offender; her plea of being unwell was also considered and dismissed. A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14932/eng@2025-09-29 3

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probation report is not mandatory and therefore the trial magistrate cannot be faulted for failing to call for one. 19. In conclusion, the court finds no incorrectness, illegality or any impropriety on the conviction and sentencing of the Applicant. 20. The Application is unmerited. It is hereby dismissed. DATED , SIGNED AND DELIVERED AT ISIOLO. THIS 29TH DAY OF SEPTEMBER 2025. S.CHIRCHIR JUDGE. In the presence of: Roba Katelo- Court Assistant The Applicant Mr. B. Ngetichfor the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14932/eng@2025-09-29 4

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