https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13061

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E052 OF 2026** **AHAMEFULA CHINEDU STANLEY………………………….1ST APPELLANT** **PRISCAH UGONMA EZEH…………………………..………2ND APPELLANT** **VERSUS** **REPUBLIC………………………………………………………..RESPONDENT** *(Being an appeal against the sentence imposed and orders of the trial court in JKIA Chief Magistrate’s Court Criminal Case No. E104 of 2025)* **JUDGEMENT.** 1. The appellants, Ahamefula Chinedu Stanley (“Ahamefula”) and Priscah Ugonma Ezeh (“Priscah”), were jointly charged before the trial court with four counts. Count I alleged trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act. .Count II, the appellants were charged with unlawful possession of minerals without a licence contrary to section 203 of the Mining Act, Cap. 306. Counts III and IV, Ahamefula and Priscah, respectively, were charged with being unlawfully present in Kenya contrary to section 53(1)(j) as read with section 53(2) of the Kenya Citizenship and Immigration Act. 2. They initially pleaded not guilty. Following a plea bargain, the charge was amended on 21st August 2025. Ahamefula pleaded guilty to Counts I, II and III and admitted the facts as presented. 3. Following that plea, the prosecution applied under section 87(a) of the Criminal Procedure Code to withdraw Counts I and II against Priscah, on the basis that Ahamefula had admitted ownership of the cocaine and topaz minerals. The application was not opposed and the trial court allowed the withdrawal. 4. The 1st appellant was sentenced to serve six months imprisonment in each of counts II and III, and in count I, he was sentenced to pay a fine of Kshs. 50 million in default to serve one-year imprisonment. The court ordered the sentences to run consecutively. The 2nd appellant was absolutely discharged under section 35(1) of the Penal Code. The court also directed that USD. 3,900 which was prosecution exhibit 9 be forfeited to the state. 5. Aggrieved, the appellants filed the present appeal. The appeal principally challenges the sentences imposed, contending that the trial court erred in ordering the sentences to run consecutively, failed to consider the period spent in custody pursuant to section 333(2) of the Criminal Procedure Code, and unlawfully ordered forfeiture of USD 3,600 belonging to Priscah, notwithstanding the withdrawal of the substantive charges against her and the absence of proof that the money constituted proceeds of crime. 6. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 7. I have considered the record, the grounds of appeal and the submissions by learned counsel. Three issues arise for determination, namely, whether the trial court properly took into account the period spent in custody; whether the sentences ought to have run consecutively or concurrently; and whether the order for forfeiture of USD 3,600 was lawful. 8. On the first issue, the record shows that the 1st appellant was arrested on 5th June 2025 and sentenced on 16th September 2025. He therefore spent approximately three months and eleven days in custody before sentence. Section 333(2) of the Criminal Procedure Code provides that: **“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 provision is couched in mandatory terms. The Court of Appeal in **Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR)** held that “**taking into account**” the period spent in custody means considering that period so that the sentence is reduced proportionately. It is not sufficient for a court merely to state that the period has been taken into account while directing that the sentence commences from the date of conviction. 2. In the present case, there is no indication from the sentencing proceedings that the trial court considered the period spent in custody as required by section 333(2). The omission was therefore an error of law which this Court is entitled to correct. 3. On the second issue, section 14(1) of the Criminal Procedure Code provides: **“Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.”** 1. The discretion must, however, be exercised judicially. The Court of Appeal in **Peter Mbugua Kabui v Republic [2016] eKLR** stated: *“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.”* 1. The converse is that consecutive sentences are appropriate where separate and distinct offences arise from different transactions. 2. The offences for which the 1st appellant was convicted arose from the same transaction, at the same place and on the same date. There were no separate criminal transactions or victims warranting consecutive sentences. **Paragraph 7.13 of the Judiciary Sentencing Policy Guidelines** likewise provides that where offences emanate from a single transaction, the sentences should run concurrently. 3. I therefore find that the trial court erred in directing that the sentences run consecutively. The sentences ought to have run concurrently. 4. The third issue concerns the forfeiture of USD 3,600 found in the possession of the 2nd appellant. The record is clear that, following the plea bargain, the charges relating to trafficking in narcotic drugs and possession of minerals were withdrawn against her. She remained liable only in respect of the immigration offence and was ultimately discharged. The effect of a discharge under section 35 of the Penal Code is material. The section permits the court, in appropriate circumstances, to discharge an offender absolutely or conditionally. 5. The 2nd appellant was not convicted of trafficking in narcotic drugs, possession of minerals or any offence in respect of which the money could properly be regarded as proceeds of crime. More importantly, there was no evidence before the trial court establishing that the USD 3,600 constituted proceeds of crime, was derived from the trafficking offence, or was otherwise connected with criminal activity. 6. Section 389A of the Criminal Procedure Code provides a statutory procedure for forfeiture where goods or things are liable to forfeiture under written law. The court must first have a lawful basis for forfeiture and, where applicable, afford the person believed to be the owner an opportunity to show cause. The law on proceeds of crime similarly requires a nexus between the property and criminal conduct. Section 92(1) of the Proceeds of Crime and Anti-Money Laundering Act contemplates forfeiture where the property is proved, on a balance of probabilities, to have been used or intended for use in the commission of an offence or to be proceeds of crime. 7. In the present case, the only established fact was that the money was found in the possession of the 2nd appellant. Possession, without more, did not establish that the money was proceeds of crime or an instrumentality of an offence. The fact that her sister did not ask for the money to be returned, or that the 2nd appellant allegedly did not claim it, did not supply the missing evidential or legal foundation for forfeiture. Indeed, the record shows that she made an application for release of the money. 8. The trial court therefore fell into error by treating the absence of a claim by the 2nd appellant or her sister as a basis for forfeiture. The burden remained on the prosecution to establish the lawful basis for depriving her of the property. That burden was not discharged. 9. Accordingly, the appeal succeeds. The orders of the trial court are varied as follows: 10. The sentences imposed in Counts II and III shall run concurrently with each other but consecutively to the default sentence imposed in Count I. 11. The sentences shall take effect from 5th June 2025, being the date of the 1st appellant’s arrest, in accordance with section 333(2) of the Criminal Procedure Code. 12. The order forfeiting USD 3,600 belonging to the 2nd appellant is set aside. 13. The USD 3,600 shall be released to the 2nd appellant, subject to verification of the amount and any lawful claim thereto. 14. The appeal is otherwise partially allowed to the foregoing extent. Orders accordingly. **Judgement dated and delivered virtually this 18th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**