Republic v Eshiwani & another (Case E173 of 2024) [2025] KEMC 327 (KLR)
The bottom line
#A Kenyan court jailed and heavily fined a drug courier, ruling that protecting the country outweighs sympathy for vulnerable drug mules.
What this practically means
#Executive summary
#Key legal issues
#Sentencing of a drug mule/courier who pleads guilty
The court adopted the Ontario Court of Appeal's reasoning and range of three to five years for importing less than one kilogram of cocaine as a guideline for Carolyne, who trafficked 909.7 grams
The court found the Kenyan Sentencing Guidelines and the Narcotic Drugs Act do not distinguish between mules, middle-level traffickers and drug barons, and Kenyan superior court decisions give no guidance for guilty-plea mules. It therefore adopted persuasive Canadian reasoning treating cocaine importation as violent and serious, stressing denunciation and deterrence even for vulnerable couriers, and set a two-year prison term plus fines.
Mandatory minimum fine for conspiracy to traffic
The conspiracy provision carries a mandatory minimum fine with a possibility of life imprisonment; Carolyne benefits from her guilty plea and is sentenced to a fine on Count 3
The court read the Act in totality, finding the legislators treated conspiracy as the most serious offence by attaching the stiffest penalty: a fine of not less than Kshs 100 million and possible life imprisonment. The word 'liable' makes imprisonment a possibility, while the phrase 'not less than' makes the fine a mandatory minimum.
Legal principles established
#- Where the option of a fine is provided in the law, the court must first consider it before imposing a custodial sentence
- A guilty plea is a mitigating factor in sentencing
- Denunciation and deterrence apply to drug couriers even where they are vulnerable first offenders
Court orders
#- 1.Count 1: fine of fifty million shillings, in default one year in prison, AND two years imprisonment; default sentence to run concurrently with the prison term
- 2.Count 2: fine of fifty million shillings, in default one year in prison, AND two years imprisonment; default sentence to run concurrently with the prison term
- 3.Count 3: fine of Kshs 100 million, in default one year in prison
- 4.All sentences in Counts 1, 2 and 3 to run concurrently
- 5.Pre-trial detention period taken into account under section 333 of the Criminal Procedure Code
- 6.14 days right of appeal to Carolyne
- 7.Exhibits produced during the plea taking to be returned to the Investigating Officer since the trial of the 2nd accused is ongoing
- 8.Investigating Officer to ensure personal property not used as exhibits is returned to Carolyne on a date to be fixed by the court
- Jurisdiction invoked
- First-instance criminal sentencing jurisdiction under the Narcotic Drugs and Psychotropic Substances (Control) Act and the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Eshiwani & another (Case E173 of 2024) [2025] KEMC 327 (KLR)", Case Analysis (2025). Case E173 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/327/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.