Ally and Another v. R. Crim. Rev. 20-D-72; 15/2/72; Mwakasendo, Ag. J.

 

Ally and Another v. R. Crim. Rev. 20-D-72; 15/2/72; Mwakasendo, Ag. J.

The accused were convicted on their own plea of guilty of selling beer after authorized hours c/s 12 and 65 of the Intoxicating Liquors Act, 1968 (Act 28 of 1968). The accused, both of whom are first offenders, were then sentenced to a fine of Shs. 500/= each or one months imprisonment in default and (b) twenty days’ imprisonment. The court further ordered the “Trading Licence be withdrawn”, and the two bottles of beer be confiscated.

            Held: “I find it difficult to accept the principle of imposing on an individual a sentence whose severity does not fit his crime and guilt, the only justification being that the court thinks that others might be deterred thereby. Were the accused hard-core or even second offenders there might have been an explanation for the severity of the sentence. There are no doubt sound and good reasons for considerably reducing the hours of drinking alcoholic beverages in premises popularly known as ‘beer stores’ but that as far as I am aware, does not make the contravention of the authorized hours a serious offence that must be visited on its first contravention with the full rigours of the law. The offence does no in the least involve any opprobrium or any moral turpitude, a factor to be taken into account by a court when considering whether to send a person to jail or not. The sentence of 20 day’s imprisonment shall accordingly be quashed and set aside.” (2) “The perusal of the record shows a marked disregard of the accepted judicial approach to sentencing. Not only did the Magistrate completely fail to inquire into the accused’s means to pay the fine but also the accused were given no opportunity to speak against either the forfeiture of trading licence or the confiscation of their property. The procedure adopted is to say the least arbitrary. I find that the order of forfeiture is ultra vires the provisions of the Act. The trial court is only empowered to order a forfeiture of a trading licence if the case before him falls within the ambit of the provisions of either sub-section (1) or (2) of section 87 of the Intoxicating Liquors Act, 1968. On a proper construction of both sub-sections I fail to see how the present

Case could be brought within the context of the section. I will accordingly quash and set aside the order of forfeiture and direct that the trading licence be restored to the owners unless there are other lawful grounds for with-holding it.” (3) “Now the order of for feature of the subject-matter of the offence, to wit, the bottles of beer, this can only be done in terms of the provisions of section 88 of the Intoxicating Liquors
Act, 1968. (The judge quoted s. 88 and continued).No order of forfeiture can be considered judicially made if the court neither hears the person interested in the property nor gives any reasons why it thinks fit that the intoxicating liquor in question should be forfeited to the government. This the trial court did not do and were I satisfied that quash in the order made thereon would serve any useful purpose I would have not hesitated doing so. But it is now so late in the day that reversing the order forfeiting the Intoxicating liquor in question will only give rise to unnecessary inconvenience both in time and money.” (4) “Apart from what I have already said on the procedure that must be followed a Court may properly impose a sentence for the payment of a fine, I am wholly satisfied that the fine imposed is quite adequate to meet the justice of the case. The Director of Public Prosecutions, who has been consulted, fully concurs with the orders made herein.”