[2010] KEHC 3006 (KLR)
The trial magistrate imposed a sentence that exceeded the statutory maximum prescribed by Section 58(1) of the Traffic Act, namely a fine of Kshs 200,000 or imprisonment for one year, instead of the lawful maximum of Kshs 20,000 or nine months imprisonment. This rendered the sentence illegal. The appellate court,...
Source-derived case information.
- Citation
- [2010] KEHC 3006 (KLR)
- Parties
- Appellant: Allan Ngugi Wambue; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 319 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Sentencing Illegality, Traffic Offences, Magistrate Jurisdiction, Plea of Guilty, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Allan Ngugi Wambue
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial magistrate exceeded the statutory maximum and was therefore illegal.
- 2 Whether the appellant is entitled to a reduction of sentence and refund of excess fine paid.
Ratio Decidendi
The trial magistrate imposed a sentence that exceeded the statutory maximum prescribed by Section 58(1) of the Traffic Act, namely a fine of Kshs 200,000 or imprisonment for one year, instead of the lawful maximum of Kshs 20,000 or nine months imprisonment. This rendered the sentence illegal. The appellate court, exercising its powers under Section 354(3)(b) of the Criminal Procedure Code, reduced the fine to the lawful maximum and ordered a refund of the excess amount paid by the appellant. The appeal succeeded solely on the ground of illegality and excessiveness of sentence.
Court Disposition
appeal_allowed
Orders
- The fine imposed on the appellant is reduced from Kshs 200,000 to Kshs 20,000.
- The excess amount of Kshs 180,000 paid by the appellant shall be refunded forthwith.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Criminal Appeal 319 of 2008
ALLAN NGUGI
WAMBUE…………………………………………………………….APPELLANT
VERSUS
REPUBLIC………………………………………………………………….RESPONDENT
JUDGMENT
The Appellant was charged with the offence of permitting the use of an unroad worthy motor vehicle on a public road contrary to Section 55(1) as read with Section 58(1) of the Traffic Act (Cap 403, Laws of Kenya).The Appellant pleaded guilty to the charge, and was convicted of the offence, on his plea of guilty, and was sentenced to a fine of Kshs 200,000/= or in default to imprisonment of one year.
The Appellant paid the fine of Shs 200,000/= as ordered by the court but has appealed to this court on one ground only namely, sentence.
It was the submission of Mrs Nancy Njoroge learned Counsel for the Appellant that the learned trial magistrate exceeded her jurisdiction by fining the Appellant a sum of Shs 200,000/= or in default to imprisonment for one year.Counsel submitted that the relevant provision of the law (Section 58(1))of theTraffic Act (Cap 403 Laws of Kenya), provides for a fine of Shs 20,000/= or a term of imprisonment of nine months and not one year.The sentence was therefore illegal.
Counsel relied on the case of WAINAINAvs. REPUBLIC [1986] K.L.R. 615, where the High Court dismissed an Appellant's appeal but reduced the sentence.Mrs Njoroge asked the court to do the same in this case.
Mr. Nyakundi learned State Counsel, was gracious enough to concede the appeal on the sole ground, the trial magistrate exceeded her jurisdiction, and passed an illegal sentence.
I agree with both Counsel.Firstly a person who pleads guilty and is convicted and sentenced on the said plea can only appeal on the question of the extent and legality of said sentence.Those are the provisions of Section 348of theCriminal Procedure Code (Cap 75, Laws of Kenya).
Secondly Section 58(1)of theTraffic Act prescribes a sentence of Shs 20,000/= or imprisonment of 9 months for contravention of either the provision of Section 55(1)of theTraffic Act (permitting the use of an unroad worthy vehicle), or Section 56 (overloading a vehicle i.e. using a vehicle on a road with a load greater than the load specified by the manufacturer of the chassis of the vehicle, or (greater) than the load capacity determined by an Inspector under the Act).As the Appellant pleaded guilty to the charge the proper sentence under Section 58(1)of theTraffic Act ought to have been a fine of Shs 20,000/= or in default imprisonment for a term of 9 months.A fine in excess of, or a term beyond, the amount or period prescribed was patently illegal and calls for interference by this court on that ground.
The Appeal thus succeeds on the question of both the extent and legality of sentence.In exercise of the power conferred upon this court by Section 354(3)(b) of the Criminal Procedure Code, I reduce the amount of fine from Kenya Shillings Two hundred thousand (Kshs 200,000/=) to Kenya Shillings Twenty thousand (Kshs 20,000/=).As the Appellant paid the said sum of Kshs 200,000/=, I direct that the excess of Kshs 180,000/= be forthwith refunded to the Appellant.
There shall be orders accordingly.
Dated, delivered and signed at Nakuru this 26th day of February 2010
M. J. ANYARA EMUKULE
JUDGE