( Appeal against the Judgment of Hon. S.N Mutava – Resident Magistrate, delivered on 13/07/2023 in Rongo Principal Magistrate’s Court Criminal Case No. E006 of 2022 )
JUDGMENT
INTRODUCTION
1. The Appellant was charged in the said criminal case with the offence of trafficking in narcotics drugs contrary to Section 3 (1) as read with Section 4 (a) of the Narcotics Drugs and Psychotropic Substances Control Act No. 4 of 1994 . The particulars of the offence were that on the 24 th June, 2022 , at about 0900 hours at Awendo Township sub county Migori County within the Republic of Kenya, the Appellant trafficked in narcotics drugs by conveying cannabis sativa (bhang) 104 (One Hundred and Four Tariffs) whose street value is Kshs. 20,800.00 (Twenty Thousand Eight Hundred) on a motor cycle registration number KMFY 933S make Honda ACE 125 Red in Colour in contravention of the said Act.
2. The Appellant pleaded not guilty to the charge and the case proceeded for full trial in which the prosecution called three (3) witnesses in total.
3. At the close of the prosecution’s case, the Court found the Appellant as having a case to answer and placed him on his defence. He elected to give sworn evidence and was cross-examined. By the Judgment delivered on the 13 th July, 2023 , the Appellant was convicted and sentenced to serve eight (8) years imprisonment.
4. Dissatisfied with the decision, the Appellant filed the undated Petition of Appeal which has been reproduced verbatim, is crafted as follows:
i) No evidence on record that can place the Appellant at the scene of crime.
ii) The prosecution failed to proof the case beyond reasonable doubt.
iii) That no prima facie case was established to warrant a conviction that is safe.
iv) That the sentence meted herein is harsh, excessive, and punitive in the circumstances.
v) That I seek the leave of the court to amend and/or adduce more grounds after receiving records of the lower court.
vi) That the medical report and witness account does not disclose the offence of grievous harm but rather assault.
5. Further he filed Amended Grounds of Appeal on sentence only in which has been reproduced verbatim, is crafted as follows:
a) That the trial court erred in both law and fact by meting a sentence although lawful was manifestly a harsh and excessive in the circumstances.
b) That the trial court erred in both law and facts by meting a custodial sentence despite me praying for a non-custodial sentence and considering my defence and mitigation.
PROSECUTION’S TESTIMONY AT THE TRIAL COURT
6. PW1 PC Eric Mutugi testified before court and stated that he is attached at Awendo Police station and on the 24/6/2022 at around 0945 hours and acting on a tip off from members of the public that there was a rider along Migori Kisii road highway suspected of carrying bhang. He testified that they intercepted the Motorcycle and arrested the Appellant who had wrapped 104 tariffs around his body. On cross examination PW1 informed the trial court that the Appellant was arrested on the Motor cycle alone.
7. PW2 PC Bernard Cheruiyot, testified before court and stated that on the date of the incident he received a phone call from PW1 to meet him at Ranen Stage. He testified that they met and PW1 informed him that he had information of a tip off that a rider was transporting bhang on a Motorbike that had no registration number. That they intercepted him at the stage and he had wrapped the cannabis on his body. He testified that the suspect had 104 tariffs and he was arrested. He testified that the motor bike and cannabis were released to the OCS and the suspect was arraigned in court. On cross examination PW2 testified that he was called on a tip off by PW1.
8. PW3 PC David Murando, testified that he was the investigating officer in the matter. That on the material date he was informed by the OCS a suspect had been arrested for the offence of trafficking drugs. He went with PW1 & PW2 who recorded their statements. PW3 testified that PW1 & PW2 had been tipped off that Honda red motor cycle with no registration number was transporting bhang. That the said PW1 & PW2 arrested the suspect and brought him to the station. At the station they discovered that the Appellant had wrapped the bang around his body, which was around 104 tariffs. The investigating officer testified that the motor cycle had an insurance policy hence he was able to identify the motor cycle as registration number KMFY 9333S. He further added that he took samples of the tariffs to the government analysist and the samples were confirmed to be cannabis. He produced the exhibits in support before the trial court. On cross examination he confirmed that he was the one who arrested the Appellant.
DEFENCE TESTIMONY BEFORE THE TRIAL COURT
9. The Appellant testified as DW1 . He gave sworn testimony. He stated that he is a boda boda rider and on the material date he was at work. He had carried two passengers. He was to transport them to a place that he did not know. He testified that while enroute to the destination a motor vehicle stopped then and it had police officers. He testified that the police stated that they had been informed that they had bhang, that the two passengers had paper bags that contained bhang and that they entered into an agreement with the police and were released. That they took the bhang and tied it on the Appellant’s body. On cross examination the Appellant testified that he was arrested along Awendo – Migori road and it not the place they tied the bhang on him.
10. That after the trial, by the Judgment delivered on 13/7/2023, the Appellant was convicted and sentenced to serve 8 year’s imprisonment.
HEARING OF THE APPEAL
11. The Appeal was canvassed by way of written submissions. The Appellant filed his submission which is undated. The Respondent equally through Prosecution Counsel Elizabeth Kogo , filed the Submissions dated 18/05/2026.
APPELLANT’S SUBMISSIONS
12. In summary, the Appellant submitted that he is not challenging the conviction but rather requesting the court to reconsider the sentence and reduce it to a non-custodial sentence.
RESPONDENT’S SUBMISSIONS
13. Prosecution Counsel submissions were in respect to the grounds of appeal earlier filed. It was the Respondent’s submission that they proved their case beyond reasonable doubt.
14. On the issue of whether the sentence was excessive the Prosecution while relying on the Case of Bernard Kimani Gacheru vs Republic (2002) eKLR submitted that the sentence issued by the trial court in the matter was sufficient given the circumstances of the case.
ANALYSIS AND DETERMINATION
15. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses ( See Okeno vs. Republic [1972] E.A 32 ) .
16. Having considered the submissions by the parties and the record of the proceedings before the trial court, I note that the only issue for determination in this appeal is whether the sentence imposed by the trial court was manifestly harsh and excessive in the circumstances of the case.
17. The principles upon which an appellate Court may interfere with a sentence imposed by a trial Court are well settled. An appellate Court will not ordinarily interfere with the exercise of discretion by the trial Court merely because it would have imposed a different sentence. Interference is warranted where it is demonstrated that the trial Court acted on a wrong principle, overlooked a material factor, took into account an irrelevant or improper factor, or that the sentence imposed is manifestly excessive or harsh in the circumstances of the case.
18. In Bernard Kimani Gacheru vs Republic [2002] eKLR , the Court of Appeal stated that an appellate Court will not interfere with the sentence imposed by a trial Court unless it is evident that the trial Court overlooked some material factor, took into account some immaterial factor, acted on a wrong principle, or that the sentence is manifestly excessive in the circumstances of the case.
19. The offence with which the Appellant was charged was trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act . The sentence imposed must therefore be considered within the statutory framework applicable to the offence, as well as the circumstances in which the offence was committed, the quantity and nature of the narcotic drug involved, the Appellant’s mitigation and any other relevant sentencing considerations.
20. The record shows that upon conviction, the Appellant was sentenced to eight (8) years’ imprisonment. The Appellant contends that although the sentence was lawful, it was manifestly harsh and excessive and that the trial Court ought to have considered a non-custodial sentence.
21. The record further shows that the Appellant had pleaded for forgiveness and he was the sole breadwinner of family to which a pre-sentencing report was presented before the trial Court. The report was favourable to the Appellant and recommended that he be considered for a non-custodial sentence.
22. I am mindful that the recommendation contained in a pre-sentencing report is not binding upon the Court. Nevertheless, it constitutes a material consideration in the exercise of sentencing discretion, particularly where it provides information regarding the offender’s social circumstances, family responsibilities, prospects of rehabilitation and the attitude of the community towards his reintegration.
23. The pre-sentencing report further showed that the Appellant had a young family and that the community was amenable to having him back. The willingness of the community to receive and support the Appellant upon his release is a relevant consideration in assessing his prospects of rehabilitation and reintegration as he had a strong community ties. These circumstances, however, do not diminish the seriousness of the offence or the need to protect society.
24. I have also considered that the Appellant has been in custody from the 27 th June, 2022 and has remained in custody since then. He was subsequently convicted and sentenced to eight (8) years’ imprisonment on 13 th July, 2023, as a result by the time of sentencing, the Appellant had already spent more than one year in custody.
25. The sentencing Court was presented with a favourable pre-sentencing report, an offender with a young family, and a community that was willing to receive and support him upon his release. While the recommendation in the report was not binding, these were relevant matters which ought to have been weighed together with the nature and circumstances of the offence and the objectives of sentencing.
26. In my view, where an appellate Court is called upon to reconsider a sentence, fairness to the Appellant requires the Court to consider the circumstances preceding the commission of the offence, those prevailing at the time of trial, and, where relevant, the circumstances obtaining at the time of the appeal. The Appellant’s conduct and personal circumstances at these different stages may be relevant in determining the appropriate sentence. Further, the need to protect society requires the Court to assess the likely impact of the offender’s continued incarceration, including whether such incarceration would serve a beneficial purpose for both the offender and society. It is in this context that a pre-sentencing report may be useful in assisting the Court to arrive at an appropriate sentence.
27. Sentencing is not solely punitive. It also serves the purposes of rehabilitation, deterrence, accountability and reintegration of offenders into society. ( See Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015 )
28. The Court is required to strike a balance between the seriousness of the offence, the interests of society and the circumstances and prospects of rehabilitation of the offender.
29. I have considered the circumstances of the present case. The Appellant was found in possession of 104 tariffs of cannabis sativa, which had a stated street value of Kshs. 20,800.00. The narcotic substance was subsequently analysed and confirmed to be cannabis. The Appellant was intercepted while riding the motorcycle and the narcotic drugs were found wrapped around his body. These circumstances demonstrate that the offence was not merely one of possession for personal use but involved the transportation of narcotic drugs.
30. I have also considered the Appellant’s mitigation and his plea for a non-custodial sentence. The seriousness of trafficking in narcotic drugs, its impact on society and the circumstances in which the Appellant was found with the narcotic substance are relevant considerations. The trial Court was therefore entitled to consider a custodial sentence.
31. However, the question that remains is whether the sentence of eight (8) years’ imprisonment was manifestly harsh and excessive so as to warrant interference by this Court. In answering that question, I have considered the statutory penalty, the quantity of narcotic drugs involved, their value, the circumstances of the offence, the Appellant’s mitigation, the favourable pre-sentencing report, his family circumstances, the willingness of the community to receive him back and the period already spent in custody.
32. I am therefore satisfied that the circumstances of the case, considered cumulatively, demonstrate that the sentence of eight (8) years’ imprisonment was not manifestly harsh and excessive. I will however consider the favourable pre-sentencing report which recommended a non-custodial sentence, the Appellant’s young family, the community’s willingness to receive him back and the period he had already spent in custody.
33. In determining the appropriate sentence to substitute, I have considered the period the Appellant has already spent in custody from 27 th June, 2022, the favourable pre-sentencing report, his family circumstances, the community’s willingness to receive him back and the need to balance punishment, deterrence, rehabilitation and protection of society.
34. In the circumstances, I find that the period already served is sufficient punishment for the offence in the particular circumstances of this case .
35. Consequently, the Appellant’s appeal against sentence succeeds. The sentence of eight (8) years’ imprisonment imposed by the trial Court is set aside and is substituted with a sentence of the period already served.
36. The Appellant shall therefore be released from custody forthwith unless otherwise lawfully held .
Orders accordingly
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCRA NO. E019 OF 2025 DANCOS GIMAINO MOROBE VS REPUBLIC JUDGMENT Pg. 8
JUDGMENT
INTRODUCTION
1. The Appellant was charged in the said criminal case with the offence of trafficking in narcotics drugs contrary to Section 3 (1) as read with Section 4 (a) of the Narcotics Drugs and Psychotropic Substances Control Act No. 4 of 1994 . The particulars of the offence were that on the 24 th June, 2022 , at about 0900 hours at Awendo Township sub county Migori County within the Republic of Kenya, the Appellant trafficked in narcotics drugs by conveying cannabis sativa (bhang) 104 (One Hundred and Four Tariffs) whose street value is Kshs. 20,800.00 (Twenty Thousand Eight Hundred) on a motor cycle registration number KMFY 933S make Honda ACE 125 Red in Colour in contravention of the said Act.
2. The Appellant pleaded not guilty to the charge and the case proceeded for full trial in which the prosecution called three (3) witnesses in total.
3. At the close of the prosecution’s case, the Court found the Appellant as having a case to answer and placed him on his defence. He elected to give sworn evidence and was cross-examined. By the Judgment delivered on the 13 th July, 2023 , the Appellant was convicted and sentenced to serve eight (8) years imprisonment.
4. Dissatisfied with the decision, the Appellant filed the undated Petition of Appeal which has been reproduced verbatim, is crafted as follows:
i) No evidence on record that can place the Appellant at the scene of crime.
ii) The prosecution failed to proof the case beyond reasonable doubt.
iii) That no prima facie case was established to warrant a conviction that is safe.
iv) That the sentence meted herein is harsh, excessive, and punitive in the circumstances.
v) That I seek the leave of the court to amend and/or adduce more grounds after receiving records of the lower court.
vi) That the medical report and witness account does not disclose the offence of grievous harm but rather assault.
5. Further he filed Amended Grounds of Appeal on sentence only in which has been reproduced verbatim, is crafted as follows:
a) That the trial court erred in both law and fact by meting a sentence although lawful was manifestly a harsh and excessive in the circumstances.
b) That the trial court erred in both law and facts by meting a custodial sentence despite me praying for a non-custodial sentence and considering my defence and mitigation.
PROSECUTION’S TESTIMONY AT THE TRIAL COURT
6. PW1 PC Eric Mutugi testified before court and stated that he is attached at Awendo Police station and on the 24/6/2022 at around 0945 hours and acting on a tip off from members of the public that there was a rider along Migori Kisii road highway suspected of carrying bhang. He testified that they intercepted the Motorcycle and arrested the Appellant who had wrapped 104 tariffs around his body. On cross examination PW1 informed the trial court that the Appellant was arrested on the Motor cycle alone.
7. PW2 PC Bernard Cheruiyot, testified before court and stated that on the date of the incident he received a phone call from PW1 to meet him at Ranen Stage. He testified that they met and PW1 informed him that he had information of a tip off that a rider was transporting bhang on a Motorbike that had no registration number. That they intercepted him at the stage and he had wrapped the cannabis on his body. He testified that the suspect had 104 tariffs and he was arrested. He testified that the motor bike and cannabis were released to the OCS and the suspect was arraigned in court. On cross examination PW2 testified that he was called on a tip off by PW1.
8. PW3 PC David Murando, testified that he was the investigating officer in the matter. That on the material date he was informed by the OCS a suspect had been arrested for the offence of trafficking drugs. He went with PW1 & PW2 who recorded their statements. PW3 testified that PW1 & PW2 had been tipped off that Honda red motor cycle with no registration number was transporting bhang. That the said PW1 & PW2 arrested the suspect and brought him to the station. At the station they discovered that the Appellant had wrapped the bang around his body, which was around 104 tariffs. The investigating officer testified that the motor cycle had an insurance policy hence he was able to identify the motor cycle as registration number KMFY 9333S. He further added that he took samples of the tariffs to the government analysist and the samples were confirmed to be cannabis. He produced the exhibits in support before the trial court. On cross examination he confirmed that he was the one who arrested the Appellant.
DEFENCE TESTIMONY BEFORE THE TRIAL COURT
9. The Appellant testified as DW1 . He gave sworn testimony. He stated that he is a boda boda rider and on the material date he was at work. He had carried two passengers. He was to transport them to a place that he did not know. He testified that while enroute to the destination a motor vehicle stopped then and it had police officers. He testified that the police stated that they had been informed that they had bhang, that the two passengers had paper bags that contained bhang and that they entered into an agreement with the police and were released. That they took the bhang and tied it on the Appellant’s body. On cross examination the Appellant testified that he was arrested along Awendo – Migori road and it not the place they tied the bhang on him.
10. That after the trial, by the Judgment delivered on 13/7/2023, the Appellant was convicted and sentenced to serve 8 year’s imprisonment.
HEARING OF THE APPEAL
11. The Appeal was canvassed by way of written submissions. The Appellant filed his submission which is undated. The Respondent equally through Prosecution Counsel Elizabeth Kogo , filed the Submissions dated 18/05/2026.
APPELLANT’S SUBMISSIONS
12. In summary, the Appellant submitted that he is not challenging the conviction but rather requesting the court to reconsider the sentence and reduce it to a non-custodial sentence.
RESPONDENT’S SUBMISSIONS
13. Prosecution Counsel submissions were in respect to the grounds of appeal earlier filed. It was the Respondent’s submission that they proved their case beyond reasonable doubt.
14. On the issue of whether the sentence was excessive the Prosecution while relying on the Case of Bernard Kimani Gacheru vs Republic (2002) eKLR submitted that the sentence issued by the trial court in the matter was sufficient given the circumstances of the case.
ANALYSIS AND DETERMINATION
15. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses ( See Okeno vs. Republic [1972] E.A 32 ) .
16. Having considered the submissions by the parties and the record of the proceedings before the trial court, I note that the only issue for determination in this appeal is whether the sentence imposed by the trial court was manifestly harsh and excessive in the circumstances of the case.
17. The principles upon which an appellate Court may interfere with a sentence imposed by a trial Court are well settled. An appellate Court will not ordinarily interfere with the exercise of discretion by the trial Court merely because it would have imposed a different sentence. Interference is warranted where it is demonstrated that the trial Court acted on a wrong principle, overlooked a material factor, took into account an irrelevant or improper factor, or that the sentence imposed is manifestly excessive or harsh in the circumstances of the case.
18. In Bernard Kimani Gacheru vs Republic [2002] eKLR , the Court of Appeal stated that an appellate Court will not interfere with the sentence imposed by a trial Court unless it is evident that the trial Court overlooked some material factor, took into account some immaterial factor, acted on a wrong principle, or that the sentence is manifestly excessive in the circumstances of the case.
19. The offence with which the Appellant was charged was trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act . The sentence imposed must therefore be considered within the statutory framework applicable to the offence, as well as the circumstances in which the offence was committed, the quantity and nature of the narcotic drug involved, the Appellant’s mitigation and any other relevant sentencing considerations.
20. The record shows that upon conviction, the Appellant was sentenced to eight (8) years’ imprisonment. The Appellant contends that although the sentence was lawful, it was manifestly harsh and excessive and that the trial Court ought to have considered a non-custodial sentence.
21. The record further shows that the Appellant had pleaded for forgiveness and he was the sole breadwinner of family to which a pre-sentencing report was presented before the trial Court. The report was favourable to the Appellant and recommended that he be considered for a non-custodial sentence.
22. I am mindful that the recommendation contained in a pre-sentencing report is not binding upon the Court. Nevertheless, it constitutes a material consideration in the exercise of sentencing discretion, particularly where it provides information regarding the offender’s social circumstances, family responsibilities, prospects of rehabilitation and the attitude of the community towards his reintegration.
23. The pre-sentencing report further showed that the Appellant had a young family and that the community was amenable to having him back. The willingness of the community to receive and support the Appellant upon his release is a relevant consideration in assessing his prospects of rehabilitation and reintegration as he had a strong community ties. These circumstances, however, do not diminish the seriousness of the offence or the need to protect society.
24. I have also considered that the Appellant has been in custody from the 27 th June, 2022 and has remained in custody since then. He was subsequently convicted and sentenced to eight (8) years’ imprisonment on 13 th July, 2023, as a result by the time of sentencing, the Appellant had already spent more than one year in custody.
25. The sentencing Court was presented with a favourable pre-sentencing report, an offender with a young family, and a community that was willing to receive and support him upon his release. While the recommendation in the report was not binding, these were relevant matters which ought to have been weighed together with the nature and circumstances of the offence and the objectives of sentencing.
26. In my view, where an appellate Court is called upon to reconsider a sentence, fairness to the Appellant requires the Court to consider the circumstances preceding the commission of the offence, those prevailing at the time of trial, and, where relevant, the circumstances obtaining at the time of the appeal. The Appellant’s conduct and personal circumstances at these different stages may be relevant in determining the appropriate sentence. Further, the need to protect society requires the Court to assess the likely impact of the offender’s continued incarceration, including whether such incarceration would serve a beneficial purpose for both the offender and society. It is in this context that a pre-sentencing report may be useful in assisting the Court to arrive at an appropriate sentence.
27. Sentencing is not solely punitive. It also serves the purposes of rehabilitation, deterrence, accountability and reintegration of offenders into society. ( See Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015 )
28. The Court is required to strike a balance between the seriousness of the offence, the interests of society and the circumstances and prospects of rehabilitation of the offender.
29. I have considered the circumstances of the present case. The Appellant was found in possession of 104 tariffs of cannabis sativa, which had a stated street value of Kshs. 20,800.00. The narcotic substance was subsequently analysed and confirmed to be cannabis. The Appellant was intercepted while riding the motorcycle and the narcotic drugs were found wrapped around his body. These circumstances demonstrate that the offence was not merely one of possession for personal use but involved the transportation of narcotic drugs.
30. I have also considered the Appellant’s mitigation and his plea for a non-custodial sentence. The seriousness of trafficking in narcotic drugs, its impact on society and the circumstances in which the Appellant was found with the narcotic substance are relevant considerations. The trial Court was therefore entitled to consider a custodial sentence.
31. However, the question that remains is whether the sentence of eight (8) years’ imprisonment was manifestly harsh and excessive so as to warrant interference by this Court. In answering that question, I have considered the statutory penalty, the quantity of narcotic drugs involved, their value, the circumstances of the offence, the Appellant’s mitigation, the favourable pre-sentencing report, his family circumstances, the willingness of the community to receive him back and the period already spent in custody.
32. I am therefore satisfied that the circumstances of the case, considered cumulatively, demonstrate that the sentence of eight (8) years’ imprisonment was not manifestly harsh and excessive. I will however consider the favourable pre-sentencing report which recommended a non-custodial sentence, the Appellant’s young family, the community’s willingness to receive him back and the period he had already spent in custody.
33. In determining the appropriate sentence to substitute, I have considered the period the Appellant has already spent in custody from 27 th June, 2022, the favourable pre-sentencing report, his family circumstances, the community’s willingness to receive him back and the need to balance punishment, deterrence, rehabilitation and protection of society.
34. In the circumstances, I find that the period already served is sufficient punishment for the offence in the particular circumstances of this case .
35. Consequently, the Appellant’s appeal against sentence succeeds. The sentence of eight (8) years’ imprisonment imposed by the trial Court is set aside and is substituted with a sentence of the period already served.
36. The Appellant shall therefore be released from custody forthwith unless otherwise lawfully held .
Orders accordingly
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCRA NO. E019 OF 2025 DANCOS GIMAINO MOROBE VS REPUBLIC JUDGMENT Pg. 8