Mwangi v Republic (Criminal Appeal E111 of 2023) [2026] KEHC 9263 (KLR) (22 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CRIMINAL APPEAL NO. E111 OF 2023** **DENNIS KARANJA MWANGI …………………………….…… APPELLANT** **VERSUS** **REPUBLIC ……………………………….…..……….….…….RESPONDENT** **JUDGMENT** 1. This is an appeal against the conviction and sentence by the Hon. Susan Mwangi (SRM) given on 7.12.2023 in Murang’a CMCCRC No. E764 of 2023. 2. The Appellant was charged in Count I with the offence of trafficking in Narcotic Drugs contrary to Section 4 (a)(1) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 2022. The particulars were that on 6.8.2023, at Katiba area in Njoguini Location within Murang’a County, the Appellant was found trafficking in drugs (bhang) by way of storing 152 rolls of the substance and approximately 3 kg of the said substance (bhang) with estimated street value of Ksh. 20,0000/= which was not in medicinal preparation form. There was an alternative charge of being in possession of narcotic drugs contrary to Section 3(1) as read with Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 2022. 3. The Appellant was charged in count 2 with having suspected stolen property contrary to section 323 of the Penal Code. He was acquitted on this count. 4. The Appellant was convicted on his own plea of guilty in count I. He mitigated. The court sentences him to 20 years imprisonment. Aggrieved, the Appellant lodged the Petition of Appeal dated 25.10.2023 on the grounds thus: 5. The learned trial magistrate erred in law and fact by convicting the Appellant on an equivocal plea. 6. The learned trial magistrate erred in law and fact in imposing a harsh and excessive sentence. 7. There was also amended grounds of appeal filed with the submissions. They were submitted as shall be seen in the submissions. Submissions 1. The Appellant filed submissions dated 19.11.2025. It was submitted that charge was defective in referring to street value instead of market value under Section 2 of the Act. Reliance was placed on **Yongo v Republic** **(1983) KLR**. 2. The Appellant also submitted that the Respondent failed to follow strict procedure in relation to inventory of seizure, certificate of sampling, Government Analyst report and testimony of a gazetted analyst. He cited Section 74A of the Act. Reliance was placed on **Moses Banda v Daniel (2016) eKLR** based on which it was submitted that the procedure in Section 74A of the Act was mandatory and failure to follow it would render any sentence imposed not to stand. 3. It was submitted that the plea was unequivocal and the sentence was excessive and based on pubic sentiments. He submitted that the language of the plea was not recorded and no caution was administered. 4. The Respondent filed submission on 8.12.2025. It was submitted that the plea was unequivocal. They cited **Adan v Republic (1973) EA**. 5. It was further submitted that the sentence was proper as in law provided as fine of Ksh. 500,000/= or in default imprisonment for a term not exceeding 20 years. Reliance was placed on Section 4 of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 2022. Analysis 1. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in ***Pandya vs Republic [1957] EA 336*** held as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 1. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of **Okeno v Republic [supra],** the East Africa Court of Appeal stated on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 1. However, the matter herein relates to a plea of guilty. An appeal is not allowed unless to the extent of the unequivocally of the plea and compliance with procedural safeguards. As to whether the plea was unequivocal, it is instructive to note that the procedure of taking plea is provided for under section 207 of the Criminal Procedure Code as follows: 2. **The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.** 3. **If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary: Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.** 4. The procedure was properly outlined and set out in the case of **Adan v R (1973) 446** as follows: “When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own word, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts if the accused does not agree with the statement of facts or asserts additional facts which if true might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused’s reply must, of course, be recorded”. 1. The court cannot thereof accept an equivocal plea of guilty. In **P. Foster (Hallege) Ltd -Vs- Roberts** (1978) 2 ALL ER 751, 754 – 755 it was held thus: *“... A court cannot accept an equivocal plea of guilty: It … must either obtain an equivocal plea or enter a plea of not guilty. For a plea to be equivocal the defendant must add to the plea of guilty qualification which, if true, may show that he is not guilty of the offence charged.”* 1. In this case, the record reveals that on 29.92023, the trial court enquired and the Appellant stated that the language he understood was Kiswahili. The charges were then read to him and he answered “ni kweli”. The state counsel then read the details and facts of the charges constituting the offence in Count I. The Appellant stated that he understood the facts and they were true. 2. In this case the facts were clearly read to the Appellant in Kiswahili language that he chose. When he was called to answer he stated *"the facts are correct."* This plea was unequivocal plea. There was no provocation or undue influence demonstrated. In *Kato v Republic [1971] 1 E.A 542 (CAD*) the Court of Appeal set out the way of taking the plea and in that case, where plea was equivocal the court quashed the conviction and set aside the sentence. In that case the court said: The procedure relating to the calling upon the accused person to plead is governed by s.203 of the Criminal Procedure Code. In our view, if it can be clearly shown that an accused person has admitted all the ingredients which constitute the offence charged, it is then proper to enter a plea of guilty. The words "it is true" when used by an accused person may not amount to a plea of guilty, for example, in a case where there may be a defence of self-defence or provocation. As was said by this court in the case of R v Yonasani Egalu (1942), 9 E.A.C.A. 65, at p. 67" 1. The Appellant properly took his plea in a language he understood which was Kiswahili language. He admitted the charges and the case proceeded to mitigation before he was sentenced. The issue of equivocal plea therefore does not arise. The Appellant did not dispute the facts as narrated, which meant that his was an unequivocal plea of guilty, and the trial magistrate correctly entered the pea and convicted him after mitigation. 2. The other grounds introduced in the submissions relating to defective charge sheet due to reference to street value as opposed to market value are flimsy and do not go to the root of the trial in light of the plea of guilty. This is also a round about way of challenging the unequivocal plea which he took. The court finds the allegations of street value as opposed to market value flimsy. There is no official market for illicit narcotics. Street value is therefore the market value, unless of course there is evidence of official market prices. 3. The Appellant also lamented about breach of his legal representation right as he was not represented by counsel. Article 50 (2) (h) of the Constitution provides as follows: *“(2) Every accused person has the right to a fair trial, which includes the right-* *(a)...* *(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”* 1. The Court of Appeal in [**Manyeso v Republic [2023] KECA 827 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/827/eng%402023-07-07) held thus: The appellant did not raise the issue of legal representation either in the trial court and the High Court. The appellant participated in the trial and cross-examined the witnesses, and it was not evident that he suffered any or any substantial injustice. The appellant’s rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were not violated. 1. The right to be informed of counsel is important but does not vitiate a trial, especially where an accused understands the trial as in this case. It is important that the courts indicate that they have informed the accused of the right to be represented. However, not every failure result in a mistrial. In the case of [**Manyeso v Republic** [2023] KECA 827 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/827/eng%402023-07-07), the court of appeal [P Nyamweya, JW Lessit & GV Odunga, JJA] held as follows: This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in [William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic](https://new.kenyalaw.org/akn/ke/judgment/keca/2022/23)(Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the [Constitution](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/679) demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the [Constitution](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/679) were violated. 1. The above case was appealed and the supreme court in [**Republic v Manyeso** [2025] KESC 16 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/16/eng%402025-04-11) held as follows: In [Gitonga v Republic](https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/61%22%20%5Ct%20%22_blank) (Petition 11 of 2017) [2020] KESC 61 (KLR) we faulted the Court of Appeal for entertaining the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in the courts below. In our determination, we stated as follows: “It is in that regard not disputed that the question as to whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the state or by failure to inform him of the right to legal representation was raised for the first time at the Court of Appeal. We have also interrogated the record before us and confirmed that the issue was neither raised at the Resident Magistrate’s Court nor at the High Court. None of the articles of the [Constitution](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2) in the present appeal was also the subject of interpretation and application at the High Court….” 55. Therefore, we agree with the submissions made by the appellant that the Court of Appeal acted ultra vires when it determined in the first instance whether the life sentence imposed upon the respondent was constitutional. In the same vein, this court cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it has not been raised and determined by the High Court and cascaded through the proper channels 1. I have not discerned any prejudice that the Appellant suffered during the proceedings. Consequently, I find that the conviction is safe and free from any miscarriage of justice. Accordingly, the conviction is upheld. The appeal against conviction is therefore dismissed. 2. Sentencing is one of the most intricate aspects of trial. It complements the trial. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. 3. Sentencing is one of the most intricate aspects of the criminal trial process and forms an integral part of the administration of justice. It complements the trial by determining the appropriate consequence of criminal conduct. A proper sentence should meet the ends of justice and uphold the fundamental principles of sentencing, including proportionality, deterrence, rehabilitation, retribution, restorative justice, denunciation, reconciliation and reintegration and protection including community protection. The objectives of sentencing as set out in the 2023 Sentencing Guidelines are as follows: “1.3.1 Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other – insofar as possible, sentences imposed should be geared towards meeting the objectives in totality. * + 1. **Retribution:** To punish the offender for their criminal conduct in a just manner. 2. **Deterrence:** To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. 3. **Rehabilitation:** To enable the offender to reform from his/her criminal disposition and become a law-abiding person. 4. **Restorative Justice:** To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs. Community 5. **Protection:** To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts. 6. **Denunciation:** To clearly communicate the community’s condemnation of the criminal conduct. 7. **Reconciliation:** To mend the relationship between the offender, the victim and the community. 8. **Reintegration:** To facilitate the re-entry of the offender into the society” 1. This sentence appeal revolves solely around the interpretation of section 4 of the Narcotics Drugs and Psychotropic Substances Control Act (No. 4 of 1994). The said section, regarding penalty for trafficking in narcotic drugs and allied offences, states as follows: Any person who trafficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable- * 1. In respect of any narcotic drug or psychotropic substance- 1. where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment; 2. where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment; 1. In respect of precursor chemicals or any substance, other than a narcotic drug or psychotropic substance, which he or she represents or holds out to be a narcotic or psychotropic substance- * 1. where the person is in possession of 50 mg or more, to a fine of not less than twenty million shillings or imprisonment for life; and 2. where a person is in possession of 50 mg or less, to a fine of not less than ten million shillings, or to imprisonment to a term of not less than ten years, or to both such fine and imprisonment. 2. This then brings the court to two aspects of the punishment that should be dealt with. The first one is ‘shall’ and the second one is ‘liable to’ in one sentence, that is, “shall be liable’. The court of appeal in [**Caroline Auma Majabu v Republic [2014] KECA 269 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/269/eng%402014-10-09) stated as follows: [13] In our view, the word “*shall*” is used in relation to the guilt of the offender and the word used in relation to the sentence is “*liable*”. The *Concise Oxford English Dictionary 12th Edition* defines the word “*liable”* as *“(i) Responsible by law, legally answerable, (liable to) subject by law to;* *(ii) (Liable to do something) likely to do something;* *(iii) (Liable to) likely to experience (something undesirable).* *Black’s* *Law Dictionary* defines “*liable*” as 1. *Responsible or answerable in law; legally obligated,* 2. *Subject to or likely to incur (a fine, penalty etc.)* 14] Applying the above definition, the use of the word “*liable”* in *section 4(a)* of Narcotic Drugs and Psychotropic Substance Control Act merely gives a likely maximum sentence thereby allowing a measure of discretion to the trial court in imposing sentence with the maximum limit being indicated. It should be noted that sentencing is an exercise of judicial discretion, and therefore provisions which provide for mandatory sentence compromise that discretion, and are the exception rather than the rule. Thus, where applicable the mandatory sentence must be expressed in clear and unambiguous terms. 1. Further in the case of **DANIEL KYALO MUEWA – Vs REPUBLIC (2009)eKLR** the Court of Appeal cited with approval the meaning ascribed to the term **‘shall be liable’** in the case of **OPOYA – Vs- UGANDA [1967] E.A 752** where it was held: “It seems to us beyond argument that he words ‘shall be liable to’ do not in their ordinary meaning require the the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it” … “We have no doubt that the sentence of 10 years imprisonment and 20 years imprisonment prescribed in Section 3 (2) (a) of the Act for the possession of ‘cannabis sativa’ are the maximum and that the court can lawfully impose any shorter term of imprisonment. Furthermore, although Section 3 (2) (a) of the Act does not expressly provide for a fine, the law can lawfully in accordance with Section 26 (3) of the Penal Code sentence the offender to pay a reasonable fine in substitution for imprisonment” 1. Section 26 of the Penal Code provides as follows: * 1. A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable. 2. Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. 3. A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment: Provided that (i) where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; 1. Consequently, the sentence indicated as liable to includes a shorter sentence inclusive invocation of section 35 of the penal code that provides for Absolute and conditional discharge. 2. The sentence also had to be one that was hinged on retributive justice for the secondary victims. If the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of his offence at the time of sentencing him, chances of the Accused person being reintegrated in the society would be next to impossible as there were possibilities of being harmed. 3. It is understood that sentence is a matter that rests in the discretion of the trial court. The court should not lightly interfere with sentence unless the same is manifestly excessive, illegal, failed to take into account relevant circumstances or took into account irrelevant circumstances. The Court of Appeal, on its part, in **Gacheru v Republic (Criminal Appeal 188 of 2000) [2002] KECA 94 (KLR)** posited as follows: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. 1. The superior courts have over time distilled the principles to be considered in setting aside sentence meted out by the trial court. In the case of **Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003** the Court of Appeal stated thus:- **“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”** 1. The Court of Appeal for the former Eastern Africa, settled the principle that an appellate court will not ordinarily interfere with a sentence imposed by a trial court unless it is demonstrated that the trial court acted on wrong principles, overlooked material factors, considered irrelevant matters, or that the sentence is manifestly excessive or manifestly inadequate in the circumstances of the case, when it addressed the same in the case of **Ogolla s/o Owuor vs. Republic, [1954] EACA 270**, and pronounced itself on this issue as follows:- *"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”* 1. The first appellate court must be careful. This Court must be careful not to interfere with the trial court’s discretion without having regard to the foregoing principles. This was also addressed recently in the case of **Hillary Kipkirui Mutai v Republic** [2022] KEHC 1179 (KLR), that: **9. Sentencing is an important aspect of the administration of justice. Noting that sentencing is based on a judicial officer’s discretion, this Court must be careful not to interfere with such a decision, unless it is demonstrated that the sentence was manifestly excessive, was illegal, improper or founded based on misrepresentation of material facts.** 1. In deciding on sentence, the court is bound by precedent and the applicable statute and sentencing guidelines. 2. The Appellant was convicted of trafficking in 152 rolls of bhang with an estimated street value of Kshs. 20,000/=. He pleaded guilty to the charge at the earliest opportunity. In the circumstances, the sentence of 20 years' imprisonment with hard labour, imposed without the option of a fine, was, in my view, manifestly excessive and wholly disproportionate to the offence committed. As the adage goes, one does not require a hammer to kill a mosquito. The sentence failed to take into account the principles of proportionality and fairness and therefore warrants interference by this Court. 3. The sentencing guidelines in the situational analysis provides as follows: 4.3.4 An offender’s guilty plea rarely impacted on the decision of the courts in the past. This is because of underlying perceptions that such consideration would be tantamount to ‘rewarding’ an offender. However, today, the discounting of sentences on this basis is considered acceptable; this is because aside from the aforementioned benefits to the victims and the criminal justice system, it is a clear expression of the willingness on the part of the offender to take responsibility for their actions. In addition, an early plea of guilty increases the chances of positive outcomes of reconciliation and re-integration of the offender. 1. The policy directions are indicated as follows: 4.3.5 The court must remain guided by the overall objective, which is the conviction of the guilty. It, therefore, shall satisfy itself that the accused person fully understands what pleading guilty means and the effect of pleading guilty. 4.3.6 Where courts are satisfied that it is safe to accept a plea of guilty, they should grant a discount after considering the appropriate sentence based on culpability and harm specific to the offence alongside other aggravating and mitigating features. Once the court has arrived at that sentence, a discount of up to one third of the sentence should be applied where the offender has pleaded guilty at the earliest opportunity. Thereafter, e.g., where an offender has pleaded guilty just before, or during trial, a lesser reduction may be afforded. 4.3.7 The reduction in sentence for a guilty plea can be taken into account by imposing one type of sentence rather than another – for example, by reducing a custodial sentence to one of community service or reducing community service to a fine. 4.3.8 Where an offender has indicated a plea to a lesser or different offence which is not accepted by the prosecution or the court, but is then later convicted of that lesser offence, the court should give a level of reduction that is appropriate to the stage at which that indication of plea was given. 4.3.9 In the case of a mandatory minimum sentence, the discount cannot go below that minimum term set by statute. 1. Having considered the facts of this case and his mitigation, this court comes to the firm conclusion that a sentence of 20 years was improper and unnecessarily excessive as to amount to injustice. The drug trafficked was cannabis sativa. In the sentencing part of section, that is section 4 of the Narcotics Drugs and Psychotropic Substances Control Act (No. 4 of 1994), it provides for liable to. It is not lost on the court, that the drugs are not treated the same in the Act. Cannabis is given less punishment than other drugs. In respect to possession, section 3(2)(a) and (b) provides as follows: **2. A person guilty of an offence under subsection (1) shall be liable** **(a) in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment to a term of not more than five years or to a fine of not more than one hundred thousand shillings;** **(b) in respect of a narcotic drug or psychotropic substance, other than cannabis, where a person is in possession of less than one gram, to a fine of not less than five million shillings, or to imprisonment to a term of not less than five years, or to both such fine and imprisonment; and …** 1. Meaning it is not a minimum but sets a maximum sentence. Further, the sentence for possession is worlds apart between cannabis and other narcotic drugs or psychotropic substances. The same should also be reflected in sentencing for trafficking in heroin and other substances as set out in schedule 2 of the Narcotics Drugs and Psychotropic Substances Control Act (No. 4 of 1994). 1. A fine of Ksh. 60,000/=, which is prescribed may not be useful in the circumstances, given the amount of cannabis trafficked. It is not deterrent enough. Therefore, a fine is not a proper sentence in the circumstances of the appellant. However, a custodial sentence is proper. Given the mitigation, the street value of the cannabis, the plea of guilty, the degree of harm and culpability, coupled with the fact that the appellant is a first offender, a sentence of 5 years shall suffice as befitting to the appellant. It is suitable and appropriate. 2. The appellant was arrested on 26.9.2023. Section 333(2) of the Criminal Procedure Act provides as follows: (2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 1. The sentence should therefore run from the date of arrest on 26.9.2023. Determination 1. I therefore make the following orders: - 2. The sentence of twenty (20) years' imprisonment is hereby set aside and substituted with a sentence of 5 years imprisonment. It shall run from 26.9.2023 when the Appellant was arrested. 3. 14 days right of appeal. 4. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** this **22nd** day of **June** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:-** Pro se Appellant Mr. Vincent Maina for the ODPP PC Patrick K. at Nyeri Maximum Prison Court Assistant – Martin