Ng'iela v Republic (Criminal Appeal E005 of 2024) [2026] KECA 1475 (KLR)
The bottom line
#Kenya's Court of Appeal cut a drug trafficker's effective sentence from 20 years to 3 years plus a fine, holding the law set maximum sentences, not mandatory ones.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the sentence imposed was in accord with Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994, as in force at the time the charges were framed and at conviction and sentencing, the amendment to the Act having come into effect only on 21st December 2022.
- 2.Whether the sentence of a fine of Kshs.1,000,000 with 10 years imprisonment in default plus a further 10 years imprisonment was harsh and excessive.
- 3.What default sentence should attach where the court does not impose the statutory maximum fine.
- 4.Whether a maximum sentence was warranted having regard to the quantity of cannabis trafficked and the appellant's status as a first offender.
Key legal issues
#Nature of the sentence under Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994 as applicable at the material time.
The word 'liable' in Section 4(a) means that the fine and imprisonment prescribed under each limb are maxima rather than mandatory minimums, so the trial court was not bound to impose the maximum.
The court examined the text of the pre-amendment Section 4(a) under which the charges were framed and under which the appellant was convicted and sentenced. It identified 'liable' as the operative word, concluding that each limb prescribes a ceiling rather than a floor. The sentence is therefore discretionary, and the 2022 amendment that altered the regime was not in force at any material time, so the trial court and the High Court erred in treating a 20-year custodial outcome as mandated by the statute.
Lawfulness of the default sentence of 10 years imprisonment imposed for non-payment of the fine.
Where the maximum fine is not imposed, the default sentence must accord with Section 28(2) of the Penal Code, capping imprisonment in default at 12 months where the fine exceeds Kshs.50,000.00; the 10-year default term was therefore wrong.
Applying what it described as trite law, the court held that a default sentence must correspond to the fine actually imposed. Since the trial court fined the appellant Kshs.1,000,000 rather than the statutory maximum fine of fifty million shillings or three times the market value, the 10-year default term could not stand. Section 28(2) of the Penal Code fixes a maximum default term of 12 months for fines above Kshs.50,000.00, and the substituted sentence adopts that cap.
Whether, in the circumstances, the maximum sentence was warranted on the quantity trafficked and the appellant's first-offender status.
Although the quantity of cannabis trafficked (353 rolls) was not small, the appellant being a first offender, the maximum sentence was not warranted and the sentence actually imposed was excessive.
The court weighed the gravity of the offence against the appellant's personal circumstances. It accepted that the quantity trafficked could not be termed small, which pointed to a substantial sentence, but held that only the circumstances of a case can justify going to the statutory maximum. As a first offender facing a discretionary sentence, the appellant's effective custodial exposure was reduced from an aggregate of 20 years (10 in default plus 10 substantive) to 3 years, alongside the retained fine of Kshs.1 Million with a 12-month default term.
Legal principles established
#- Under Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994 (as in force before the 2022 amendment), the prescribed fine and imprisonment terms are maxima, not mandatory minimums; the word 'liable' leaves the sentencing court with discretion below the statutory maximum.
- Where a court does not impose the statutory maximum fine, the default sentence must accord with Section 28(2) of the Penal Code, which caps imprisonment in default at 12 months where the fine exceeds Kshs.50,000.00.
- A maximum sentence should be imposed only where the circumstances of the case dictate.
Court orders
#- 1.The sentence meted out on the appellant was set aside.
- 2.Substituted therefor a sentence of a fine of Kshs. 1 Million and, in default, 12 months imprisonment.
- 3.In addition, an imprisonment term of 3 years.
- 4.If the appellant does not pay the fine under the 1st limb, the sentences shall run consecutively.
- 5.It is so ordered.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- Criminal Appeal No. E047 of 2019
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter came before the Court of Appeal at Mombasa as a second appeal from the High Court at Garsen.
Relief refused
#Challenge to the conviction (which formed part of the undated Grounds of Appeal)
Not refused on the merits but abandoned: at the hearing the appellant elected to pursue only the appeal against sentence, so the conviction as upheld by the High Court stands undisturbed.
Costs
No costs order was made; the judgment is silent on costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The operative word in imposing the sentence under this provision is ‘liable’, which means that, under any of the two limbs, the sentence therein was not a mandatory minimum but the maximum.
Further, it is trite law that, when a court is not imposing the maximum fine as provided in the applicable statute, the default sentence should accord with Section 28(2) of the Penal Code, which provides for a maximum default sentence of 12 months where the fine is above Kshs.50,000.00.
Further, a maximum sentence should be imposed when and only the circumstances of the case dictate.
Accordingly, we hereby set aside the sentence meted out and substitute therefor a sentence of a fine of Kshs. 1 Million and, in default, serve 12 months imprisonment and, in addition, to an imprisonment of 3 years.
If the appellant does not pay the fine under the 1st limb, the sentences shall run consecutively.
We thus find and hold that the sentence meted out was excessive in the circumstances.
Issues in the judgment
#The judgment recites two different estimated street values for the same 353 rolls of cannabis on the same date and place: the main count states 'an estimated street value of Kshs.114,299, in contravention of the said Act' while the alternative count states 'estimated street value of Kshs.114,200, which was not meant for medicinal purpose'.
The sentence is described inconsistently within the judgment: it was imposed as 'a fine of Kshs.1,000,000 (One million) and, in default, serve 10 years imprisonment and, in addition, serve a further 10 years imprisonment', yet the concession of Prosecution Counsel and the quoted High Court passage describe it as a sentence 'of 20 years imprisonment'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng'iela v Republic (Criminal Appeal E005 of 2024) [2026] KECA 1475 (KLR)", Case Analysis (2026). Court of Appeal appeal number not stated in the judgment; appeal from High Court Criminal Appeal No. E047 of 2019 (Garsen). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1475/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.