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JudgmentERIC MURIMI NYAGA VS The Republic4 min read

ERIC MURIMI NYAGA VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(An Appeal from the decision of Hon. J.W. Gichimu, CM in Siakago MCCR No. E291 of 2024 Delivered on 09th July 2024)


  1. The appellant has filed a petition of appeal dated 09th October 2024 seeking that the appeal be allowed, conviction be quashed, sentence be set aside and he be set at liberty. The grounds for appeal are that the learned trial magistrate erred in law and facts by;
    1. Failing to consider imposing a fine upon the appellant; and
    2. Failing to consider that the appellant was entitled to imposition of a fine. 
  2. The appellant was charged with the offence of being in possession of narcotic drug contrary to section 3(1) as read together with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act no. 4 of 1994. Particulars of the offence are that on 08th July 2024 at about 1pm at Karurumo Market in Karurumo sub-location within Embu East subcounty within Embu County, the appellant was found in possession of 10 rolls of a substance suspected to be cannabis sativa (bhang) of estimated value of Kshs.500/= in contravention with the said Act.
  3. He pleaded guilty and he was convicted on his own guilty plea. The respondent informed the court that the appellant was a repeat offender and the appellant confirmed this position, stating that it was true. In mitigation, he stated that he had a lot of stones. He was sentenced to 2 years imprisonment, which sentence he now challenges in this appeal.
  4. This appeal was canvassed by way of written submissions.
  5. The appellant submitted that the trial court misunderstood his statement in mitigation which meant that he had a lot of rolls of the substance he was arrested with. He contended that the substance was not tested to ascertain that it was indeed cannabis sativa. He stated that he is entitled to be given the option of a fine, which the trial magistrate did not consider.
  6. The respondent submitted that the sentence imposed was lawful and fair in light of the enabling provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act no. 4 of 1994. It relied on the cases of Shadrack Kipchoge Kogo vs. Republic Criminal Appeal No. 253 of 2003 and Benard Kimani Gacheru v Republic (2002) eKLR and urged the court to uphold the sentence imposed by the trial court. That the mitigation offered by the appellant simply implied that he had a lot of cannabis and he also confirmed that he had other similar cases in the past. That he had been convicted in Criminal Case no. 8 of 2022 and was fined Kshs.10,000/=. It urged the court to dismiss the appeal since there is no basis for interfering with the sentence. 
  7. The issue for determination is whether the sentence should be reviewed.
  8. The appellant was convicted on his own guilty plea and was sentenced to 2 years imprisonment. The trial magistrate noted that he was a repeat offender and his mitigation did little to move the court. The sentences prescribed under section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act no. 4 of 1994 apply to instances where the court is satisfied that the accused person was holding the substance for his personal use. It states:

“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”

  1. Paragraph 2.3.15 of the Judiciary Sentencing Policy Guidelines 2023 provides that a repeat offender’s history should be considered during sentencing where he had admitted to the previous conviction. Here, the appellant outrightly confirmed to the court that he was previously convicted of a similar offence and sentenced to pay a fine of Kshs.10,000/=. The said Guidelines also provide that the advantage of a non-custodial sentence is granted to first offenders, depending on many other factors for instance the seriousness of the offence.
  2. The time between the previous offence that he was convicted of and the present case is roughly 2 years. One would think that the appellant has learned the ropes and knows how to circumvent the judicial system to get away with criminal offences just because he is entitled to a fine option. It is my view that the trial magistrate did not err in imposing a custodial sentence in this case given that the appellant is a repeat offender, having been convicted of a similar offence. In sentencing the appellant, the trial magistrate was also lenient, considering the mitigation offered. I find no legal basis to interfere with the sentence imposed by the trial court.
  3. In the end, I find that the appeal lacks merit and it is hereby dismissed.
  4. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.

    ERIC MURIMI NYAGA VS The Republic ERIC MURIMI NYAGA VS The Republic