Why war on illicit brews is still a headache

The administrator said that despite the sustained war, illicit brews are still a menace, adding that some notorious brewers keep moving their dens, making it difficult to curb the vice.

Omar, at the same time, said rogue officers, including police and chiefs, colluded with brewers and helped them escape arrest.

He said some leak information on looming crackdowns in exchange for bribes. Omar said some officers are being investigated.

"Some of our officers have become a headache. They are doing the opposite by aiding brewers to avoid arrest and sharing information with them," he said.

Omar also accused the Judiciary of giving brewers lenient punishment.

He said besides lenient fines and sentences, the Judiciary demands government chemists prove impounded exhibits are illicit brews.

"Daily, suspects are being released by our courts because of lack of proof from the government chemist on the exhibits we are presenting," he said.

Last year, a High Court in Nakuru faulted how lower courts handle cases of illicit brews.

Justice Mumbua Matheka, in a judgment on an appeal by Peter Kipsang Koech, said the repealed Alcoholic Act raised the bar concerning the charge of having an alcoholic drink.

Koech was charged with being in possession of an alcoholic drink that did not conform to the standards of the Alcoholic Drink Control Act.

On August 27, 2021, when arraigned in a court in Molo, he pleaded guilty and was convicted on his plea.

The prosecution submitted that Koech was not a first offender and tabled previous records.

The fact that Koech paid the fines each time was an issue, and the prosecution urged the trial court to impose a stiffer sentence.

The trial court sentenced Koech to three years imprisonment without the option of a fine.

Aggrieved, Koech, through lawyer Peter Bore, appealed.

Lawyer Bore said his client, as per the 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 a fair trial.

Judge Matheka, in the judgment, said one can no longer tell that a drink is chang'aa by name.

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 added that the provisions of the law must be kept in mind.

In interpreting the Act, the judge said that the offence of being in possession of chang'aa is not only committed by the mere possession of chang'aa.

"My understanding of this part is that the mere possession of chang'aa does not commit the offence. 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.

The key ingredient to alcoholic content, she said, lies in the chemical content of the drink, adding that it must contain one-half of one percent or more of alcohol by volume.

She 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 not to have complied with.

Without the particulars, she said he could not plead.

The charge sheet as drafted, she said, does not bear the particulars of the charge. The mere statement that he was found in possession of an alcoholic drink namely chang'aa that does not conform to the standards of the Act, she said, did not reveal anything.

Worse, she said, is the fact that the prosecutor in the case did not give any facts of the case but simply stated 'facts as per the charge sheet' and proceeded to produce what he said were 40 litres of chang'aa.

A reading of the charge sheet, she said, did not reveal facts of any particulars that can be said to support the charge Koech was facing.

"What are those standards he was expected to comply with? They are not set out; neither were they set out in the alleged facts as per the charge sheet," said the judge.

She noted that the details presented in court begged the question of what the prosecutor's basis was for telling the court 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 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.

The constitutional dispensation, she said, does not support the almost conveyor belt practice in courts where petty offenders are presented.

She said the way the charge was framed was prejudicial to Koech.

The judge quashed the three-year sentence imposed on Koech and ordered he be set at liberty.