REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA (CHERERE-J) HCCRA E046 OF 2025 BETWEEN JOB NYACHIO MIRORO.........................................................APPELLANT AND REPUBLIC........................................................................ ..........RESPONDENT JUDGMENT 1. The Appellant, Job Nyachio Miroro, was charged before the Chief Magistrate's Court at Nyamira in MCCR E773 of 2025 with the offence of possession of cannabis sativa contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. He pleaded guilty and was convicted on his own plea on 03rd December 2025 and was sentenced on 08thDecember 2025 to ten (10) years' imprisonment. 2. Aggrieved only by the sentence, the Appellant lodged a Petition of Appeal dated 18th December 2025 challenging the sentence as harsh and excessive and faulting the learned trial magistrate for failing to properly consider his mitigation and the statutory sentencing options available under the law.
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3. The appeal was supported by Appellant’s written dsubmissions dated 23rd June 2026, in which he urged the Court to interfere with the sentence imposed and substitute it with a lawful and lenient sentence. 4. At the hearing of the appeal, learned prosecution counsel, Mr. Chirchir, conceded the appeal, submitting that the sentence imposed was not authorized by law and invited the Court to substitute it with the sentence prescribed by the Act. 5. The applicable sentencing provision is section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, which provides: "A person guilty of an offence under subsection (1) shall be liable— (a) in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment for a term of not more than five years or to a fine of not more than one hundred thousand shillings." 6. I have carefully considered the record of appeal, the rival submissions and the Respondent's concession and the issue for determination is whether the sentence imposed by the trial court was lawful.
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7. In Karanja v Republic (Criminal Appeal No. 22 of 2018) [2023] KEHC 3805 (KLR), the High Court, relying on Opoya v Uganda (1967) EA 752, Daniel Kyalo Muema v Republic [2009] eKLR and section 66(1) of the Interpretation and General Provisions Act, reaffirmed that the words "shall be liable" prescribe the maximum sentence that may be imposed and do not create a mandatory minimum. Accordingly, the sentence imposed must fall within the limits prescribed by the statute. 8. Although the Appellant pleaded guilty at the earliest opportunity, a factor which the Court in Samuel Mwangi Njoroge v Republic [2015] KEHC 2798 (KLR) observed ought to count in favour of an accused person at sentencing, the decisive issue in this appeal is that the sentence imposed exceeded the maximum punishment prescribed by section 3(2)(a) of the Act and was therefore illegal. 9. From the concession foregoing analysis, I am by the Respondent is satisfied properly that the made. The sentence imposed exceeded that authorized by section 3(2) (a) of the Act and is therefore illegal and cannot be permitted to stand. 10. Consequently, it is hereby ordered: 1) The appeal on sentence is hereby allowed.
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2) The sentence of ten (10) years' imprisonment imposed upon the appellant in Nyamira in criminal case E773 of 2025 on 08th December 2025 is hereby set aside. 3) In substitution therefor, the appellant is sentenced to pay a fine of KES.50,000, and in default to serve six (6) months' imprisonment, pursuant to section 28 of the penal code. 4) Since the appellant has already served the default term of six (6) months' imprisonment, he shall be released forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS 2026 16th DAY OF July WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant Appellant - Anita - Present For the Appellant - Mr. Muriranja for Mageto & Co. Advocates For the DPP - Mr. Chirchir (SADPP)
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