https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1475

Ng'iela v Republic (Criminal Appeal E005 of 2024) [2026] KECA 1475 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1475 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E005 of 2024 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between Fredrick Owour Ng'iela Appellant and Republic Respondent (Being an appeal from the Judgement of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 8th March 2022 in HC Criminal Appeal No. E047 of 2019) Judgment 1.The appellant, Fredrick Owour Ng’iela, was charged before the Principal Magistrate’s Court at Lamu in the main count of Trafficking in Narcotic Drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994. The particulars were that, on the 13th day of January 2018 at Lamu Channel of Mkomani Location in Lamu West sub-county within Lamu County, the appellant was found trafficking in Narcotic Drugs by way of conveying 353 rolls of cannabis with an estimated street value of Kshs.114,299, in contravention of the said Act. 2.In the alternative, he was charged with Possession of Narcotic Drugs contrary to Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994, the particulars being that, on the 13th day of January 2018 at Lamu channel of Mkomani Location in Lamu West sub-County, he was found in possession of narcotic drugs namely, cannabis, to wit, 353 big rolls with estimated street value of Kshs.114,200, which was not meant for medicinal purpose. 3.After the trial, the appellant was found guilty of the main charge. He was convicted accordingly and sentenced to pay a fine of Kshs.1,000,000 (One million) and, in default, serve 10 years imprisonment and, in addition, serve a further 10 years imprisonment. 4.Dissatisfied with both the conviction and sentence, the appellant appealed to the High Court of Kenya at Garsen in Criminal Appeal No. E047 of 2019. The appeal was heard by Githinji, J. and, by a judgment delivered on 8th March 2022, both the conviction and sentence were upheld. 5.Further dissatisfied, the appellant proffered the instant appeal which, by an undated Grounds of Appeal, he challenges both the conviction and sentence. However, when the appeal came up for hearing on 15th July 2026 on the Court’s virtual platform, the appellant elected to pursue the appeal as against the sentence only. He submitted that the sentence imposed was not only harsh and excessive in the circumstances, but that it was not in accord with Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, No 4 of 1994. Learned Prosecution Counsel Mr. Waweru conceded, pointing out that the learned Judge erred in holding that the sentence meted out against the appellant of 20 years imprisonment was in accordance with the law. Mr. Waweru conceded, further, that the appellant was charged under the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994, and that at the time of sentencing, the amendment to the Act had not come into effect so as to warrant an imprisonment term of 20 years. 6.The amendment to the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994 came into effect on 21st December 2022, and was yet to come into force at the time the charges were framed and at the time of conviction and sentencing. 7.The learned Judge, in upholding the sentence, held:“As to sentence, the offence is serious. 353 big rolls of cannabis sativa could not have been solely for the Appellant’s own consumption. The offence therefore attracts a sentence of 20 years imprisonment which is what the trial court meted against the Appellant. Such is not harsh and excessive. The appeal there lacks merit and is dismissed.” 8.Section 4(a) of the 1994 Act, which was the applicable statute, and under which the charges were framed, provided that: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 liablea.in respect of any narcotic drug or psychotropic substance-i.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;ii.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; 9.The trial Court imposed both fine and imprisonment. On the 1st limb of the sentence, the appellant was sentenced to pay a fine of Kshs. 1,000,000 (One million) and, in default, serve 10 years imprisonment while, on the 2nd limb, he was sentenced to serve 10 years imprisonment. The operative word in imposing the sentence under this provision is ‘liable’, which means that, under any of the two limbs, the sentence therein was not a mandatory minimum but the maximum. Further, it is trite law that, when a court is not imposing the maximum fine as provided in the applicable statute, the default sentence should accord with Section 28(2) of the Penal Code, which provides for a maximum default sentence of 12 months where the fine is above Kshs.50,000.00. Further, a maximum sentence should be imposed when and only the circumstances of the case dictate. 10.The appellant was a first offender and, although the quantity of the cannabis sativa that was trafficked cannot be termed as small, a maximum sentence was not warranted. We thus find and hold that the sentence meted out was excessive in the circumstances. Accordingly, we hereby set aside the sentence meted out and substitute therefor a sentence of a fine of Kshs. 1 Million and, in default, serve 12 months imprisonment and, in addition, to an imprisonment of 3 years. If the appellant does not pay the fine under the 1st limb, the sentences shall run consecutively. 11.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.F. TUIYOTT..................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb...................JUDGE OF APPEALF. W. NGENYE-MACHARIA..................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR