Chijioke Andrew Maduka & 1 other v Republic

before the court trafficked in narcotic drugs namely MDMA to wit 6,07 grams with a market value of kshs 42,490 by storing in contravention of the Act. 4. They pleaded not guilty to the said charges and their trial commenced with the evidence of PW1PC Paul Njagi being recorded and cross examined thereon and, on the 3rd June 2025, the applicants herein indicated to court that they were willing top enter into plea bargain with the prosecution and on the 19th June 2025, the prosecution informed the court that they were not amenable to continue with the plea bargain, which prompted the applicants to change their plea. 5. On the 1st July 2025 ,the applicants pleaded guilty to count 1, 2 and 3 of the charges herein and a plea of guilty entered against both of them and in mitigation thereon the 1st applicant through his Advocate on record then , Mr .Hamisi stated that he was a young man who found himself in the business not by choice but by the harsh realities of the life in Nigeria which led him to relocate to Kenya in the year 2008, where he opened a shop dealing in saloon items such as human hair and that his business was affected by covid and in 2023 his father suffered a stoke , while in November of the same year he was conned of his stoke forcing him to take a soft loan from a friend who then introduced him to the drug business . 6. He had been in custody for a period of one year and that he was a first offender who was willing to assist the prosecution in getting to the real owner of business. He sought lenient sentence from the court and that he was willing to self-repatriate, 7. On the 2nd applicant it was contended that he was trafficking in drugs in Mombasa and had come to Nairobi to visit the 1st applicant when he was arrested at a time when his boss had been arrested and he wanted to get out of the business and wanted to go back to Nigeria. 8. In sentencing the applicants, the court had this to say “18. The court also looks to the charges in (sic) in that face Andrew and Stephen. There are three types of drugs involved that is cocaine, methamphetamine and ecstasy. All three are highly addictive but while cocaine is derived from coca plant, methamphetamine and ecstasy are ‘cooked’. Additionally, Andrew and Stephen chose to locate themselves in prime catchment area for student. Andrew lived within a reduce of the following institution of higher learning -USIU (Africa) Kenyatta University and Jemo Kenyatta University of Agriculture and Technology (JKUAT). There were also other collages in the same vicinity. Indeed, the area that Andrew lived is bustling and vibrant with lots of activity and entertainment places. The point of all this is that there was a ready market for cocaine, methamphetamine and ecstasy (MDMA) 19. Among the items produced was the government analyst report and an exercise book. Drug dealer’s all-over the world is the same. They keep record and hand-written records at that of all their transactions. The court had a chance to look at the exercise book and it reads like a ledger. There is no specific reference to any drug in the charge sheet by the name. But they are referred to in code. The exercise book contains meticulous details of the money received, the name of the person who owes the money the type of the drug sold and the amount received for that type of drugs. Both Andrew and Stephen were deeply involved in drug trafficking. While the court has considered their mitigation, the court is also called upon to ensure that justice is done that the communities are kept safe that the drugs are kept off the streets and that those caught in those activities face the law 20. I note the sentiments that Andrew and Stephen are remorseful and regrets their actions. I find that their plea of guilty has accrued benefits to the court and in particular, judicial time which is a scarce resource in the judiciary ……. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19363/eng@2025-12-17 2

page 2 of 6

23. owing to the gravity of the charges the default sentences are to be served consecutively “ 8. The applicants by a Notice of Motion dated 13th august 2025 moved the court for an order that there be a stay of execution of the custodial sentence imposed by the trial court and that the court do issue an interim injunction restraining the deportation removal or repartition of the applicant pending final determination of the matter. The applicants further sought an order that the court be pleased to revise the sentence rendered by crediting the applicants with the 13 months spent in pre -sentencing custody on accordance with the provisions of section 333(2) of the Criminal Procedure Code. 9. The application was supported by the joint affidavit of the applicants in which it was deposed that they pleaded guilty to the charges at the earliest opportunity and were subsequently sentence on 2nd July 2025 to a fine of kshs 50,000,000 or 12 months imprisonment on count 1, a fine of kshs 30,000,000 in default sentences to serve 12 months in count 2 and a fine of kshs 30,000,000 in default to serve 12 months on count 3, the default sentences were ordered to run consecutively despite the same raising from a single incidence , with no exceptional reasons given . 10. it was contended further that the court failed to credit the 13 months they spent in custody prior to sentencing contrary to the provisions of section 333(20 of the CPC and that the sentence imposed was unlawful excessive and infringed the applicants’ constitutional right to benefit from the least severe sentence, thereby failed to uphold the principle of proportionality. 11. The prosecution when served with the application, filed grounds in which it was stated that they had since filed an appeal on the sentence in criminal appeal no E204 of 2025 before this court and therefore should this application be allowed then the appeal will be rendered a nugatory to the prejudice of the respondent. 12. In the said appeal, the Hon. DPP contended that the trial court erred in sentencing the applicants to a sentence that are extremely lenient and not commensurate with the offence charged. 13. that the court erred by failing to comply with the sentences provided under section 4(a) (i) and (ii) of the Act and further that the default sentences were not commensurate to the fines imposed and departing from the provisions of the sentencing guidelines on the objectives of sentencing by failing to comply with the guidelines on mandatory sentencing. 14. Since the Appeal and the revision were related, the court issued directions that the appeal be converted to the grounds of opposition to the revision and that the matters be heard together by way of submissions. Submissions 15. On behalf of the applicants it was submitted that the court failed to consider the applicant’s plea of guilt, cooperation with the state and mitigating factors that they were first time offenders and remorseful, further the court failed to consider that the substance of the charge arose out of a series of the same transaction which did not warrant the sentences to be served consecutively. On the order for their repatriation upon serving the sentence, it was contended that the court did not take into account the fact that they had valid visa prior to their arrest and were therefore in the country lawfully. 16. It was contended further that the principle of rehabilitation and re-integration of the offender’s ass contained in the constitution was overlooked and that they were nit accorded the right to fair hearing before sentencing as was stated in Francis Muruatetu & others v Republic [2017] eKLR. It was contended further that the period the applicants served in remand custody was not considered as required in section 333(2) of CPC and section 38 of the Penal Code in support of which the cases https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19363/eng@2025-12-17 3

page 3 of 6

of Ahmed Abolfathi Mohamed versus Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [200] e KLR were submitted. 17. On behalf of the respondent, it was submitted that the sentence imposed by the trial court was so lenient and did not take into account the gravity and the impact of the crime on the victims. It was contended that the Act provided for imprisonment on count 1 to a term of 30 years, count 2 and 3 to a term of fifty years and that the same court had in the last imposed similar sentences taking into account the gravity of the offence of trafficking. 18. It was submitted that whereas sentencing is a matter of discretion , it must not be exercised arbitrary as was stated in Fatuma Hassan salo v Republic [2006] e KLR and therefore this court can tamper with the sentence if the discretion is not properly exercised as was stated in the cases of Bernard Kimani Gacheru v republic [2002] eKLR and R v Lina Mkunde David Kiritta [2008] KEHC 3924 KLR where the court substituted the sentence imposed by the trial court and that under section 364 of the Criminal Procedure Code this court can still impose the minimum statutory sentence , if the trial court failed to comply with the requirement. Determination 19. Having considered the submission by the parties herein, the record of proceedings before the trial court, I have identified the following issue for determination: a. Whether the trail court considered the provision of Section 333(2) of CPC in passing the sentence herein b. Whether the court erred in ordering that the sentence run consecutively c. Where the sentence is manifestly low and erroneous so as to be interfered with by this court d. What final order should the court make in respect to the notice of motion herein. 20. On section 33(2) of the CPC, the same is couched in mandatory terms, the court must take into account the period of custody during the trial and the remedy available to a convict if it was not considered is for the court deduct it to from the sentence mated by the trial court if it is confirmed that the applicant was in remand during the period of trial. In Kenya this is clearly provided for under the Judiciary Sentencing policy guidelines which obligates the courts to take into account the time already served in custody if the convicted person had been in custody during trial. This position was taken by the court in korir v Republic [2025] KEHC 10326. 21. From the record of the proceeding herein, the applicants first appeared in court on 23rd May 2024when a plea of not guilty was entered for them, by a ruling dated 27th May 2024, they were denied bond and on 18th September 2024, their application for review was denied, it is therefore clear that as at the time when the sentence herein was passed on 2nd July 2025 the same were still in remand custody a fact which the court did not take into account. I therefore allow this first limb of the application and order that the sentence herein shall run from the 23rd of May 2024 when the applicants first appeared in court. 22. On sentence, it is the respondent’s contention that the same was manifestly so lenient and did not take into account the gravity and the impact of the crime on the victims and therefore ought to be interfered with by the court. The applicants on the other had are of the view that the same having risen from the same transaction, ought to run concurrently unlike the trial courts order that it run consecutively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19363/eng@2025-12-17 4

page 4 of 6

23. The principles upon which an appellate court will act in exercising its discretion to review or alter a sentence imposed by the trial court were stated in Ogolla s/o Owuor v Republic [1954] EACA 270 “ the court does not alter a sentence unless the trial judge has acted upon wrong principles or over looked some material factors. To this we would add a third criterion namely that the sentence is manifestly excessive in the view of the circumstances of the case’ 24. Section 14 of the criminal procedure code provides for circumstances in which the court can direct sentence to run concurrently or consecutively as follows : “ (10 subject to sub-section (3) when person is convicted at one trial of two or more distinct offences the court may sentence him for those offences to the several punishment prescribed therefor which the court is competent to impose and those punishment shall commence the one after the other in the order the court may direct, unless the court direct that the punishment shall run concurrently . 2. In the case of consecutive sentence it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court 3. Except in cases to which section 7(1) applies nothing in this section shall authorize a subordinate court to pass on any person at one trial consecutive sentences. 25. It is clear that sentencing is at the discretion of the trial court and that as a general rule, where a person commits more than one offence at the same time and in the same transaction, unless in very exceptional circumstances, the court ought to impose concurrent sentence. 26. in the instant case the offences as submitted by the applicant were committed in the same transaction, they occurred on the same date at the place and time and upon the same fact and therefore the trial courts holding that they run consecutively because of the severity of the offence was in error which ought to be interfered with by the court as the concurrent sentence save for those under section 7 of CPC seems to be the better practice. 27. I will therefore allow this limp of the application and order that the sentences herein run concurrently from the date the applicants first appeared in court. 28. On the appeal by the respondent, I have taken into account that the applicants herein admitted their guilty and pleaded guilty to the charges. The trial court was a live to the severity of the offence which she pointed out in her sentence order and or remark and appreciated the fact that they saved judicial time which is a scares resource. In addition, the court ordered that the applicants upon completion of term be repatriated to their country of origin through the immigration department. 29. I will therefore not interfere with the courts exercise of discretion on sentence. 30. In the final analysis I will allow the application by the applicants and revise the trial court ruling and order on sentence ass follows a. the default sentences of 12 months shall run concurrently with effect from 23rd May 2024 when they firs appeared in court b. upon completion thereof, the applicants shall be repatriated to their country of origin and shall therefore be released to the Officials of the immigration department to facilitate the same c. The Respondents Appeal herein on sentence is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19363/eng@2025-12-17 5

page 5 of 6

31. And it is ordered. SIGNED DATED AND DELIVERED THIS 17TH DAY OF DECEMBER 2025 J. WAKIAGA JUDGE In the presence of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19363/eng@2025-12-17 6

page 6 of 6