'
EVANS KIPNGETICH , the applicant herein was convicted on his own plea of guilty to the offence of being in possession of Cannabis (bhang) Contrary to Section 3 (1) as read with Section 3 (2) (a) of the Narcotic drugs and psychotropic substance Control Act. He was sentenced on 12 th September, 2025 to serve two and a half (2 ½) years imprisonment.
The proceedings relating to the aforesaid case were placed before this Court for examination pursuant to the Provisions of Sections 362 and 364 of the Criminal Procedure Code .
I have carefully perused and examined the proceedings and it is apparent that the Applicant indeed pleaded guilty to the offence and was sentenced to serve 2 ½ years’ imprisonment. The record shows that the Applicant was a first offender. The record also shows that the Trial Magistrate recorded the mitigating factors as outlined.
Under Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances Act (Control) Act, the penalty is specified to be imprisonment to a term of not more than five (5) years or to a fine of not more than one hundred thousand shillings.
The Trial Magistrate merely recorded the fact that the Applicant was a first offender. The record does not show that he took that fact into account.
I have already set out the fact that the punishment prescribed by law is either a custodial sentence or a fine. The Trial Magistrate proceeded to impose a custodial sentence without giving the Applicant an option of a fine. Where the law provides a term of imprisonment and a fine, the sentencing policy requires that a person be first given an option of a fine. In this case, that option was not given to the Applicant.
In exercising its supervisory power of revision, this Court is required to examine any proceedings of the Subordinate Court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence recorded or passed and as to the regularity of any proceedings of any such Subordinate Court.
Having failed to take into account the mitigating factors and having failed to give the Applicant the option of a fine, this Court is entitled to interfere with the order on sentence by way of revision.
The Sentence of Imprisonment of 2 ½ years for a first offender is harsh and excessive in the circumstances of this case. The appropriate sentence should have been a fine with a default sentence.
In the end, the sentence of 2 ½ years’ imprisonment is set aside and is substituted with a fine of Kshs.20,000/= in default to serve 6 months imprisonment. The sentence to run from the date when the sentence was imposed by the Trial Court.
Dated, signed and delivered at Kericho this 21 st day of October, 2025.
J. K. SERGON
JUDGE
'
EVANS KIPNGETICH , the applicant herein was convicted on his own plea of guilty to the offence of being in possession of Cannabis (bhang) Contrary to Section 3 (1) as read with Section 3 (2) (a) of the Narcotic drugs and psychotropic substance Control Act. He was sentenced on 12 th September, 2025 to serve two and a half (2 ½) years imprisonment.
The proceedings relating to the aforesaid case were placed before this Court for examination pursuant to the Provisions of Sections 362 and 364 of the Criminal Procedure Code .
I have carefully perused and examined the proceedings and it is apparent that the Applicant indeed pleaded guilty to the offence and was sentenced to serve 2 ½ years’ imprisonment. The record shows that the Applicant was a first offender. The record also shows that the Trial Magistrate recorded the mitigating factors as outlined.
Under Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances Act (Control) Act, the penalty is specified to be imprisonment to a term of not more than five (5) years or to a fine of not more than one hundred thousand shillings.
The Trial Magistrate merely recorded the fact that the Applicant was a first offender. The record does not show that he took that fact into account.
I have already set out the fact that the punishment prescribed by law is either a custodial sentence or a fine. The Trial Magistrate proceeded to impose a custodial sentence without giving the Applicant an option of a fine. Where the law provides a term of imprisonment and a fine, the sentencing policy requires that a person be first given an option of a fine. In this case, that option was not given to the Applicant.
In exercising its supervisory power of revision, this Court is required to examine any proceedings of the Subordinate Court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence recorded or passed and as to the regularity of any proceedings of any such Subordinate Court.
Having failed to take into account the mitigating factors and having failed to give the Applicant the option of a fine, this Court is entitled to interfere with the order on sentence by way of revision.
The Sentence of Imprisonment of 2 ½ years for a first offender is harsh and excessive in the circumstances of this case. The appropriate sentence should have been a fine with a default sentence.
In the end, the sentence of 2 ½ years’ imprisonment is set aside and is substituted with a fine of Kshs.20,000/= in default to serve 6 months imprisonment. The sentence to run from the date when the sentence was imposed by the Trial Court.
Dated, signed and delivered at Kericho this 21 st day of October, 2025.
J. K. SERGON
JUDGE
'