Republic v Malika (Criminal Case E003 of 2024) [2025] KEMC 319 (KLR)
The bottom line
#A Kenyan court handed down the first sentence for conspiracy to traffic drugs: a Kshs 100 million fine plus eight-and-a-half years in prison.
What this practically means
#Executive summary
#Key legal issues
#Legislative intent and mandatory minimum under section 4(B)(5)
Parliament treated conspiracy to traffic drugs as the most serious offence under the Act, attracting a fine of not less than Kshs 100 million and a possibility of life imprisonment; the fine carries a mandatory minimum
The court read the Act in totality and found that the stiffest penalty in the Act was reserved for conspiracy to traffic drugs. It construed 'liable' as making life imprisonment discretionary but held that the phrase 'not less than' attaches a mandatory minimum to the fine, which therefore had to be imposed at not less than Kshs 100 million.
Guidance for sentencing women offenders
The court invoked Article 2(5) and (6) of the Constitution together with the Bangkok Rules and Penal Reform International guidance to account for the disproportionate impact of incarceration on women as primary caregivers
The court noted Article 10(2)(b) on equality and equity, referred to the Bangkok Rules and Tokyo Rules, and to Penal Reform International's February 2020 report advocating non-custodial measures for women convicted of drug offences. It held that women as primary caregivers suffer disproportionately when imprisoned, with direct impact on their children, and applied these standards in calibrating the sentence.
Suitability of the Sentencing Guidelines, 2023
The Sentencing Guidelines, 2023 fall short in this case because their aggravating factors are tied specifically to murder charges, while the 2016 Guidelines with stand-alone aggravating factors were revoked
The court observed that the 2023 Guidelines' aggravating factors relate only to murder, whereas the 2016 Guidelines contained a non-exhaustive list of stand-alone aggravating factors useful in drug cases. However, the Gazette Notice publishing the 2023 Guidelines revoked the 2016 Guidelines, leaving a gap the court had to navigate using other guidance.
Determinants of the sentence
The court considered the prevalence and seriousness of the offence, legislative intent, pre-trial detention, the significant quantity and value of drugs (750 grams valued at Kshs 3,000,000/-), and that the crime was part of transnational organized crime
The court enumerated the factors it took into account: prevalence and seriousness, the clear legislative intent of Parliament, the pre-trial detention period, the quantity and value of the drugs, and the transnational criminal enterprise. Balancing these against mitigation, it imposed the Kshs 100 million fine plus eight years six months imprisonment, crediting the roughly eighteen months in custody.
Legal principles established
#- The use of the word 'liable' makes life imprisonment a possibility, but the fine carries a mandatory minimum because of the phrase 'not less than'
- Sentencing in drug cases should focus on the offender's role and level of involvement rather than the amount and quantity of drugs
- A court may invoke Article 2(5) and (6) of the Constitution to take into account the unique challenges facing women who face incarceration
Court orders
#- 1.The accused is to pay a fine of Kshs 100 million, in default one year in prison
- 2.She is to serve a sentence of eight years six months (8 years 6 months) imprisonment
- 3.The default sentence is to run concurrently with the term of imprisonment
- 4.The court considered the approximately eighteen (18) months spent in pre-trial custody in reaching the term of imprisonment
- 5.The accused has 14 days right of appeal
- Jurisdiction invoked
- Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994, sections 4(B)(4) and 4(B)(5), as amended in 2022; sentencing jurisdiction of the trial court after conviction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Malika (Criminal Case E003 of 2024) [2025] KEMC 319 (KLR)", Case Analysis (2025). Criminal Case E003 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/319/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.