The police will have to return to the drawing board following a landmark court decision on the charge slapped on those arrested in possession of chang'aa.
The charge of being in possession of chang'aa has previously seen many people arrested, sent to jail and or fined heavily.
In most cases, those arraigned are sentenced on their own plea of guilty, but facts are as per the charge sheet which the prosecution relies on in the case.
The exhibits of the suspected chang'aa traders are always presented in court labelled names of accused persons, who are asked to confirm if what is in court is what was found in their possession.
However, such may not be the trend after the High Court in Nakuru faulted how a magistrate court in Molo handled one of the cases.
Justice Teresia Matheka, in a judgment on an appeal by Peter Kipsang Koech, said the repealed Alcoholic Act raised the bar as far as the charge of being in possession of alcoholic drink.
Koech was charged with being in possession of an alcoholic drink that allegedly did not conform to the standards of Alcoholic Drink Control Act.
The particulars were that on August 26, 2021, at Pangani, Amalo location, in Kuresoi South Sub-County within Nakuru County, Koech was found in possession of alcoholic drink, namely 40 litres of chang'aa.
On August 27, 2021, when arraigned in a Molo court, he pleaded guilty and was convicted on his own plea.
The prosecution submitted that Koech was not a first offender and proceeded to set out his previous records.
He was on March 19, 2021, charged with being in possession of 10 litres of chang'aa and was fined Sh5,000 or serve two-month jail term in default.
On May 7, he was charged with being in possession of 30 litres of chang'aa and was fined Sh50,000 or serve six-month jail term in default. He paid the fines.
The fact that Koech paid the fines each time was an issue, and the prosecution urged the trial court to impose a stiffer sentence on him.
Further, it was noted that there had been complaints from the area chief that the parents in his locality had become irresponsible, families ruined, and children were no longer going to school due to the consumption of the illicit liquor. This was blamed on him.
The trial court, having considered that he was not a first time offender and persuaded by the prosecution's submission, proceeded to sentence Koech to three years imprisonment without the option of a fine.
Aggrieved, through lawyer Peter Bore, Koech lodged an appeal against both the conviction and sentence on the grounds that the magistrate disregarded his mitigation and sentenced him without seeking a pre-sentence report.
Lawyer Bore said his client, as per court record, did not mitigate, and the court did not explain to him the nature and essence of mitigation. He said proceeding to sentence his client without considering his mitigation infringed on his right to fair trial.
Bore argued that his client was unrepresented and the court ought to have informed him of his rights to legal representation. That failure to do so resulted in violation of his rights as provided for under the Constitution.
In the judgment delivered last week, Justice Matheka said one would no longer tell that a drink is chang'aa by their name.
The new Act, she said, not only increased the fine, but also added ingredients of the offence.
The court said the alcoholic content of the drink said to be chang'aa must be determined.
She said it is necessary to look at the ingredients of the offence and whether it can be said that the prosecution established the same in the facts as read by the prosecutor to enable him to understand the same and plead to the same.
She said the provisions of the law must be kept in mind.
"One can no longer tell that a drink is chang'aa by the name of the drink. The new Act changed that by not only increasing the fine 200 times more from Sh10,000 to Sh2 million but also by adding as part of the ingredients of the offence the determination of the alcoholic content by volume of the drink suspected to be chang'aa," read the judgment in part.
In interpreting the Act, the judge said that the offence of being in possession of chang'aa is not only committed by merely being in possession of the drink.
She noted that the court dealt with Koech's matter in the same manner it did when a possession of chang'aa charge depended simply on the determination of the local administration or the police.
"My understanding of this part is that the offence is not committed by the mere possession of chang'aa. It is committed by the possession of chang'aa that answers to the description given in the Act," stated the judge.
The judge noted that under the previous statutory regime, a suspect would plead to the charge of being in possession of a drink known by its notorious name, and that was sufficient, but now it is not just the name but its chemical content that brings it into the purview of prohibition.
Justice Matheka said the case facing Koech is not as simple as it appears.
"Look at the definition of alcoholic drink. How is a simple lay person expected to interrogate that definition?" she questioned.
She said the key ingredient to alcoholic content lies in the chemical content of the drink, adding that it must contain one-half of one percent or more of alcohol by volume.
"Any drink going by the name chang'aa that does not have that chemical content would not fall foul of that provision of the law," she stated.
She added noted that from the charge Koech faced and its particulars, the alleged standards required by the law were not particularised yet he was expected to plead to whatever particular requirements of the Act he was alleged to not have complied with.
Without the particulars, she said, he could not plead.
The judge pointed out that the charge sheet as drafted does not bear the particulars of the charge.
In the judgment, the judge said the mere statement that Koech was found in possession of alcoholic drink, namely chang'aa, does not conform to the standards of the Act or reveal anything.
She questioned whether the prosecution knew the standards as they were not set out in the charge read in court.
She noted that the details presented in court begged the question what was the prosecutor's basis for telling the court, and the court accepting, that what was before it was 40 litres of chang'aa.
"There is nothing except containers with a liquid whose content neither the court nor the prosecution could say for sure is what it was said to be. How did the court know that this liquid did not comply with the requirement of one-half of one percent or more of alcohol by volume? The prosecution placed nothing before the court," ruled the judge.
She added: "The question then becomes, should the mere fact that the appellant pleaded guilty to the charge placed before him overtake the duty of the prosecution and the court to ensure that the charge and the facts indeed present a proper charge and facts that support the charge against the accused person? I do not think so."
The judge further noted that Koech was unrepresented, and the court did not inform him of his right to legal representation of his choice.
Courts, she said, have a duty to mete out deterrent sentences where an offender is a repeat offender, but courts should also look at the reasons for the recidivism on the part of the accused person as sometimes more punishment does not necessarily lead to reform and rehabilitation of the offender.
In conclusion, the court quashed the three-year sentence imposed on Koech and ordered he be set free.