Republic v Malika (Criminal Case E003 of 2024) [2025] KEMC 319 (KLR) (23 May 2025) (Sentence)

Republic v Malika (Criminal Case E003 of 2024) [2025] KEMC 319 (KLR) (23 May 2025) (Sentence) Neutral citation: [2025] KEMC 319 (KLR) Republic of Kenya In the JKIA Law Courts Criminal Case E003 of 2024 AN Thuku, SPM May 23, 2025 Between Republic Prosecutor and Catherine Eshituku Malika Respondent Sentence Introduction 1.This is the first sentencing in this court under the amendment to the [Narcotics and Psychotropic Substances (Control) Act](/akn/ke/act/1994/4), No. 4 of 1994. The amendments were included in 2022 and came into effect on March 21, 2022. Among the amendments was the inclusion of section 4B where the marginal note reads, “Conspiracy to commit offences under this Act”. 2.After a trial that took fifteen months the court delivered judgment in this case against Catherine Eshituku Malika (“Catherine”). 3.Catherine was charged with conspiracy to traffic narcotic drugs contrary to section 4(B)(4) as read with section 4(B)(5) of the [Narcotic Drugs and Psychotropic Substances (Control) Act](/akn/ke/act/1994/4), No. 4 of 1994. 4.The particulars of the offence are that on October 25, 2023 at Kibera within Nairobi County, jointly with others not before court, Catherine conspired to traffic narcotic drugs namely cocaine to wit 750 grams with a market value of Kshs 3,000,000/- by exporting to Mahe Island, Seychelles. 5.The rest of the sentencing proceeds as follows. First is the law as stated, then there is the mitigation presented by Prof. Nandwa, Catherine’s defence counsel. After that is a summary of the Pre-Sentence Report, a look at how other jurisdictions address conspiracy to traffic drugs, critical factor and finally the sentence. The Law 6.Sections 4(B)4 and 4(B)(5) of the [Narcotics and Psychotropic Substances (Control) Act](/akn/ke/act/1994/4) states:(4)A person who being in Kenya, conspires with another person who is also in Kenya to commit an offence under this Act in Kenya or outside Kenya commits an offence.(5)A person who conspires to commit an offence under this section commits an offence and is liable, on conviction, to a fine of not less than one hundred million shillings and to imprisonment for life. 7.A reading of the act in totality reveals the legislative intent in this particular section on conspiracy. The legislators considered conspiracy to traffic drugs such as serious offence that they gave it the stiffest penalty of all in the act. The punishment for this offence is a fine of not less than Kshs 100 million and a possibility of life of imprisonment. It is a possibility because of the use of the word “liable”. But the payment of the fine has attached to it a mandatory minimum sentence because of the phrase “not less than” . Mitigation 8.Ms. Rono for the Prosecution informed the court that the State did not have any previous records for Catherine. In essence therefore, she is a first offender. 9.Prof Nandwa presented the following factors in mitigation. He said Catherine:i.is remorseful.ii.has learnt how to live her life the hard way, through this case.iii.is a first offender.iv.requests for a second chance to prove she can be a good citizen.v.has two sons aged 19 and 15 years old respectively.vi.has been in custody for 16 months and asks the court to consider the time spent in pre-trial detention in the sentencing.vii.is fully rehabilitated.viii.prays for leniency. Pre-Sentence Report 10.The court requested for the Probation Office to prepare a Pre-Sentence Report (PSR) and I am grateful to the officer who prepared it. According to the PSR, Catherine was born in 1987 which makes her 38 years old. Her parents died when she was young and a direct consequence of this is that Catherine had a difficult childhood. She only studied until Std 8 and then moved onto be house help before getting into prostitution. It is her account that she has earned a living all her life by selling her body both within and outside Kenya’s borders. The PSR confirms that Catherine is a single mother raising her two sons. She separated from their father in 2015. The recommendation – and it is just that, a recommendation – by the Probation Officer is that Catherine is unsuitable for a non-custodial sentence owing to the nature and magnitude of the offence. 11.In terms of the offence, Catherine is not remorseful and maintains her innocence. It is her version that she was travelling to Ethiopia to meet a client for prostitution. She further adds that it is Stella who framed her so that she got arrested. She asked for leniency and a non-custodial sentence. The Probation Officer interviewed one of Catherine’s step brothers who said that Catherine had a difficult childhood which has made her bitter with life. He also said that Catherine has a “get-rich-quick” mentality. Other critical factors 12.According to information in the public domain ( a euphemism for a search online), Stella Wangari Wairimu was arraigned before a Judge on March 4, 2024 in the Supreme Court in Seychelles sitting in Ile Du Port. A cause list posted online provides this information on page 5.1 Stella’s case came up earlier this year in which there was a ruling delivered on March 3, 2025. A copy of the decision is available online. 21Available at https://www.judiciary.sc/wp-content/uploads/2024/03/supreme-court-criminal-and-juvenile.pdf2Available at https://seylii.org/akn/sc/judgment/scsc/2025/8/eng@2025-02-03 13.Stella is the reason Catherine is before this court. Stella was first arrested and she has an ongoing case before the Supreme Court in Seychelles. Before Stella’s arrest and this is mentioned only in passing, Margaret Nduta was arrested in Vietnam in July 2023. Margaret is not the subject of this case; but her case featured prominently earlier this year in the public domain. The interest surrounded the possible death sentence as required in Vietnam law. Even though she continues to deny it, the life Catherine was living caught up with her and hence this case. 14.The recommendation in the available literature on sentencing in drug cases is to consider the role and level of involvement. There is strong discouragement not to focus on the amount and quantity of the drugs. There are also aggravating and mitigating factors to consider. 15.Here unfortunately the [Sentencing Guidelines, 2023](https://www.ncaj.go.ke/wp-content/uploads/download-manager-files/UPDATED-SENTENCING-POLICY-GUIDELINES-2023.pdf) fall short because the aggravating factors are tied specifically to murder charges. The previous [Sentencing Guidelines, 2016](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Sentencing_Policy_Guidelines_Booklet.pdf) has a non-exhausting list of stand alone aggravating factors. However, the Gazette Notice from the Kenya Gazette which published the guideline in 2023 also revoked the [Sentencing Guidelines, 2016](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Sentencing_Policy_Guidelines_Booklet.pdf). 16.There is also guidance on sentencing women. There is guidance from Penal Reform International. Penal Reform International, as described on its website “is a non-governmental organization working globally to promote criminal justice systems that uphold human rights for all and do no harm.3”3See https://www.penalreform.org/about-us/ 17.In their report published in February 2020 titled, “[Sentencing of women convicted of drug-related offences](https://www.penalreform.org/resource/sentencing-of-women-convicted-of-drug-related-offences/)”, it states:…For women, the increase in their imprisonment for drug‑related offences has been attributed, in part, to the greater ease with which low‑level crimes can be prosecuted, with women’s primary role in drug trafficking usually being that of a drug courier…The _UN Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)_ adopted in 1990 seek to avoid unnecessary use of imprisonment through non-custodial measures. The _Tokyo Rules_ are supplemented by the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, also known as the Bangkok Rules, which were adopted by the UN General Assembly in December 2010 and provide standards for the specific characteristics and needs of women offenders and prisoners, including to reduce the unnecessary imprisonment of women4.4See pages 7-8 of the report “Sentencing of women convicted of drug related offences” available at https://cdn.penalreform.org/wp-content/uploads/2020/02/LinklatersPRI_Sentencing-of-women-convicted-of-drug-related-offences_WEB.pdf 18.Penal Reform International in this report advocate for non-custodial measures for women such as Catherine. 19.Article 10(2) of the [Constitution](/akn/ke/act/2010/constitution) cites the principles and values of the nation of Kenya. In particular Article 10(2)(b) makes reference to equality and equity. I have already referred to the Bangkok Rules. These were developed specifically to take into consideration the plight of incarcerated women. Women as the primary care givers suffer disproportionately when they are imprisoned. Their families and especially their children are directly impacted by the separation. Thus, while the crime of drug trafficking is carried out globally by both men and women, this court invokes Article 2(5) and (6) of the [Constitution](/akn/ke/act/2010/constitution) to take into account the unique challenges facing women who face incarceration. Determinants in Sentencing 20.I took into consideration the following factors:i.The prevalence and seriousness of the offence;ii.The clear legislative intent of Parliament as reflected by Section 4(B)(4) and 4(B)(5) of the [NPSA](/akn/ke/act/1994/4);iii.The pre-trial detention period;iv.The quantity and value of drugs involved is significant: 750 grams valued at Kshs 3,000,000/-;The crime was part of a criminal enterprise and it is transnational organized crime. Sentencing 21.In light of all the factors above, Catherine is sentenced as follows: * She is to pay a fine of Kshs 100 million in default one year in prison and to serve a sentence of eight years six months (8 years 6 months). The default sentence is run concurrently with the term of imprisonment. * In reaching a decision on the term of imprisonment, the court has considered the fact that Catherine has been in custody for close to eighteen(18) months. 22.Catherine has 14 days right of appeal. 23.It is so ordered. **DATED, SIGNED AND DELIVERED AT JKIA LAW COURTS THIS 23 RD DAY OF MAY 2025.**In the presence of: -……………………...…………………Court Assistant……………………………………………State Counsel…………………………………………….Defence Counsel……………………………………………. Accused…………………………………………….……. Language