Peterson Kabao Murimi v Republic

8. That I pray to the honorable court to review both conviction and sentence and find out that I was not fit to take plea as I could not understand the charges. Brief facts 2. The applicant was charged for the offence of traficking in narcotic drugs c/sec 4(a) (11) of the Narcotic Drugs and Psychotropic Substances (Control) Amended Act 2022. 3. Particulars of the charges are that on 11th day of December 2023 at 0500hrs at his village in Mwea West sub county within Kirinyaga county he was found traficking in narcotic drugs namely cannabis sativa to which was, 5 stones and 51 rolls valued at a total of 3020/= and which was not meant for medical purposes. 4. On his plea of guilty, he was convicted and sentenced to life imprisonment in default of fine of Kshs 1,000,000 on 8th January, 2024. 5. He seeks revision under Section 352 and 364 of Criminal Procedure Code Cap 75 Laws of Kenya. Applicant submissions 6. There are no submissions on record. Respondent submissions 7. The respondents submit that the applicant was convicted on his own plea of guilt. 8. Further, he did not show that he did not understand the charge or he was under influence and/or was suffering from any illness. 9. They submit that the trial Court was Properly guided on its discretion on Sentence and fined the Applicant [Kshs 1,000,000/-] [One Million Shillings] or serve Life imprisonment as per the law. 10. The applicant has not proved his inability to comply with the fine or proof that he did not understand the charge. Issue 11. Whether the request for revision should be allowed. Analysis 12. Under Section 364(1), the High Court may revise the orders of the lower court where it finds illegality, impropriety, or material irregularity in the proceedings or the sentence imposed. 13. However, Section 364(5) provides that where an appeal lies and no appeal is preferred, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. 14. From the record, the Applicant pleaded guilty to the charge. The trial court followed the plea-taking procedure as established in Adan v Republic [1973] EA 445, which requires that: i. The charge and all essential ingredients be explained to the accused in a language he understands. ii. The accused’s own words admitting the charge be recorded. iii. A conviction be entered only if the plea is unequivocal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18160/eng@2025-11-27 2

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15. The proceedings on record reveal no irregularity or impropriety in the manner the plea was taken. There is no medical or psychiatric report presented before this Court to substantiate the Applicant’s claim of mental instability at the time of plea or sentencing. The probation report, while noting emotional instability, does not establish unsoundness of mind as contemplated under Section 162 of the Criminal Procedure Code. 16. Furthermore, the sentence imposed—a fine of Kshs 1,000,000 in default of life imprisonment— accords with Section 4(b) of the Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022, which prescribes a minimum fine of one million shillings or imprisonment for life for traficking offences regardless of the quantity. 17. The trial Court erroneously sentenced the Applicant under the provisions of section 4 (b) of the 1994 Act although he had been charged under the 2022 Act No 4. The sentence is illegal. 18. Section 4 (a) (ii) of the 2022 Act provides as follows: “ 4. Penalty for traficking in narcotic drugs, etc. Any person who traficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable— (a) in respect of any narcotic drug or psychotropic substance— (i)where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment; (ii) 19. While the Act provides for a minimum on the fine at Kshs 50m. there is no minimum default sentence and alternative imprisonment sentence merely provides that the accused shall be liable to imprisonment for 50years. The phrase shall be liable have been defined to mean a maximum penalty only and not a mandatory. See Opoya v Uganda (1967) EA 752 as approved by the Court of Appeal in M K v Republic [2015] eKLR as follows: 19. 20. where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment;” What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya v Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death.” The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment….. The accused pleaded guilty to a charge of traficking in narcotics drugs contrary to section 4 (a) (ii) of the Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Act No 4 of 2022 with particulars that he was found traficking in narcotics drugs namely cannabis sativa to wit 5 stones, 51 rolls valued at 3,020/- which was not meant for medical purposes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18160/eng@2025-11-27 3

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21. In the circumstance of this case, the Court considers that a sentence of imprisonment for a term of ten years meets the justice of the case. Orders 22. Accordingly, for the reasons set out above, the Court while afirming the conviction on the plea of guilty to the offence of traficking in narcotics contrary to section 4 (a) (ii) of the 4 (a) (ii) of the Narcotic Drugs and Psychotropic Substances Control Act No 4 of 2022 sets aside the unlawful sentence of a fine of 1,000,000/- and in default life imprisonment and substitutes a sentence of imprisonment for ten (10) years. 23. The sentence of imprisonment for ten years shall commence on 13/12/2023 when the accused was arraigned in court. Orders accordingly. DATED AND DELIVERED THIS 27TH DAY OF NOVEMBER 2025. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mamba for the DPP. Applicant in person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18160/eng@2025-11-27 4

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