Police subjecting a motorist to alcohol levels test in Nairobi. [Photo: Courtesy]

Taking a bottle or two of beers for the road then drive home  not an offense, the court has ruled.

In a rare decision in favour of those who love to make merry, Kiambu Magistrate Brian Khaemba ruled that although law enforcement officer think intoxication is an offense, it is not.

In a decision which is a major blow to the police ,he said instead, failing to take control of the vehicle is an offense.

“All that was presented to me is that the accused was driving under the influence of alcohol which in itself is not an offense, “ the magistrate ruled.

Kiambu magistrate Brian Khaemba during a press briefing at Milimani Courts.

 “ The police have been under mistaken belief that being found driving while drunk per se amounts to an offense under section 44 under the traffic Act. That is so wrong.”

According to the magistrate in  a case where one Michael Mugo had been accused of driving a Subaru car while high on alcohol, the police have to prove that one was too drunk not to drive.

Police officers often mount road blocks, armed with breathalyzers , also known as alco blow to nab men and women who make merry.

At times it gets nasty when motorists decide to speed past the roadblocks.

In the Mugo case, an officer who arrested him, a Chief Inspector Lagat, testified in court that his alcoblow test read 0.53gm against the recommended 0.35gm. 

“ In this case, there is no indication that the accused was not in proper control of the vehicle and affected by the drink if any,” the magistrate observed.

Inspector Lagat told the court that Mugo became violent while he was arresting him that he had to call for help from another officer to arrest him.

Out of Lagat’s testimony, the court found that it would not have been a difficult task to arrest a person who was too high on alcohol.

Instead, the magistrate said,  for Mugo to have overpowered the officer, it was evident he was in control of his senses.

“It would appear the accused person was not at all affected by the drink that is why the base commander was not arrest him,” Ruled khaemba.

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