https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11819

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL APPEAL NO. E104 OF 2024** PETER MUTISO MUTUA ....................................................APPELLANT VERSUS REPUBLIC ......................................................................RESPONDENT JUDGEMENT 1. The Appellant **Peter Mutiso Mutua**, lodged this appeal vide a Petition of Appeal dated 18th November 2024 raising the following grounds :- 2. *THAT, the learned trial magistrate erred in law and facts by not considering that the pleading was non equivocal.* 3. *THAT, the learned trial magistrate erred in law and facts for imposing a harsh sentence to the appellant without considering the surrounding circumstances.* 4. *THAT, the learned trial magistrate erred in law and facts by not considering the appellant's mitigating factors.* 5. The Appellant prays that the appeal succeeds in its entirety, conviction quashed and sentence set aside and the Appellant be set at liberty. 6. The Appellant and the Respondent have filed their respective submissions to canvass the appeal. 7. The Appellant was charged with the offence of being in possession of Cannabis Sativa Contrary to Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 2022. 8. Particulars were that on 2nd October 2024 at Ngwianiwa village, Kyanganga Sub-location, Mango Location in Mwala Sub-county within Machakos County was found being in possession of 33 rolls and 2 stones of cannabis sativa (BHANG) all of the value **Kshs.1260/=** which was not in medical preparation contrary to the provisions of the said Act. 9. The Appellant was arraigned before the trial court on 3rd October 2024 and charged in Wamunyu Criminal Case No. E294 of 2024. The trial court’s record shows that before the charges were read to the Appellant, the trial court informed him that he was to indicate a language of his preference and which he understands well. The Appellant chose Kiswahili language. The substance of the charge was read over to him in Kiswahili language which he understands well and upon being asked whether he admits or denies the charge as read, he responded in the affirmative ***"ni kweli”*** *meaning* **“*it is true”*** to the charges. 10. On 17th October 2024 the facts were again read out to the Appellant in Kiswahili language to which he respondent that **"*hayo maelezo ni ya kweli”*** meaning **“*the facts as read are correct*”**. The Appellant was then convicted on his own plea of guilt. The prosecutor informed the trial court that the Appellant may be treated as a first offender. The Appellant in mitigation stated that he was sorry. He did that to survive. He is an orphan who takes care of his grandparents and prayed for leniency. 11. The trial court considered the Appellant’s mitigation and the sentiments contained in the Probation Officer’s Pre-Sentencing report dated 25/10/2024 and sentenced him to pay a fine of **Kshs.150,000/=** in default to serve **five (5) years imprisonment.** 12. The Appellant being aggrieved by the said judgement, lodged this appeal as earlier shown in this judgement. The Appellant challenges both conviction and sentence. 13. I have carefully considered the Petition of Appeal, the trial court’s record and the parties’ respective submissions. I will consider if the appeal has merit. In the premises, my duty, this being the first appellate court, is to satisfy myself that the Appellant's plea was unequivocal, before giving attention to the key question of the legality and propriety of the sentence. This obligation was well-articulated in **Okeno vs. Republic [1972] EA 32**as follows: *"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...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 conclusion; 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..."* 1. On conviction, I have established that the Appellant entered an unequivocal plea of guilty. The proper procedure of taking plea and all the steps set out in **Adan vs. Republic** were followed. The Appellant was therefore properly and lawfully convicted on his own plea of guilty. 2. As regards the propriety of the sentence, granted that the Appellant pleaded guilty and was accordingly convicted on his own plea. **Section 348** of the **Criminal Procedure Code, Chapter 75** of **the Laws of Kenya** is couched in peremptory terms thus: ***“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent and legality of the sentence.”*** 1. Hence, in the case of **Olel v Republic [1989] KLR 444**, the court, in its interpretation of the above provision was of the view that: ***“Having considered the submissions by both learned counsel on the interpretation of section 348 ... we have come to the conclusion that where the plea is clearly an unequivocal plea of guilty, an appeal against conviction cannot lie. The section itself is quite clear on that and permits of no confusion or difficulty in its interpretation. It does not merely limit the right of appeal but bars it completely in cases of an unequivocal plea of guilt. That is the fact of what the marginal note also states..."*** 1. The Appellant was charged under section 3(1) as read with section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 2022 which provide as follows: ***3. Penalty for possession of narcotic drugs, etc.*** *(1) Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence.* *(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* *(c)to, in addition to the sentences in paragraph (a) and (b) respectively, committal to appropriate court appointed treatment programme or to voluntary submission to a rehabilitation programme for a period not less than six months, where the court deems fit.* 1. I have accordingly perused the record of the trial court in the light of the sentence. The Appellant was sentenced to pay a fine of **Kshs.150,000/= in default to serve five (5) years imprisonment**. 2. The sentence provided for under the provisions of the law under which the Appellant was charged is **imprisonment to a term of not more than five years or to a fine of not more than one hundred thousand shillings.** In the instance case, the trial court imposed a fine of Kshs.150,000/= which was way above that provided for by the law being Kshs.100,000/=. In addition, the prosecution had indicated that the Appellant was to be treated as a first offender, the value of the Cannabis Sativa was shown as Kshs.1,260/=. I find that, in the premises, the trial court can be said to have erred in imposing an excessive fine and maximum sentence of five years. 3. Taking into consideration the above analysis, this court is constrained to interfere with the trial court’s sentence which is hereby set aside and substituted with a sentence of a fine of Kshs.20,000/= in default to serve two (2) years imprisonment from the date of arrest which is 02/10/2024. 4. The Appeal partly succeeds. 5. It is so ordered. JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 22ND JULY 2026 **NOEL ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 22ND JULY 2026