[2022] KEHC 17015 (KLR)

Chepkwony v Republic (Criminal Revision E095 of 2022) [2022] KEHC 17015 (KLR) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17015 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Revision E095 of 2022

RL Korir, J

November 10, 2022

Between

David Chepkwony

Applicant

and

Republic

Respondent

Ruling

1. This revision came to me by way of a letter dated October 21, 2022 filed by the applicant’s counsel on October 24, 2022.

2. The applicant stated that he was charged with one count of driving a motor vehicle on a public road without an inspection sticker contrary to section 17A as read with section 29(i) of the Traffic Act, cap 403 Laws of Kenya. He pleaded guilty and asked for forgiveness. He was sentenced to 15 days jail without an option of fine.

3. The applicant has now approached this court seeking revision on ground that the section 29(i) of the Traffic Act provides for a fine and in default a custodial sentence. He contends that the sentence was harsh in the circumstances.

4. This court’s revisionary jurisdiction is exercised under the provisions of section 362 of the Criminal Procedure Code which states:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.

5. In Republic v Philip Kipngeno Langat Criminal Revision No 1 of 2019 [2022] eKLR, this court cited and was persuaded by the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR, where Odunga J held that:-“In my view, the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by the High Court of Malaysia in Public Prosecutor v Muhari Bin Mohd Jani and Another[1996] 4 LRC 728 at 734, 735:-“ The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice… If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion… This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammelled and free, so as to be failry exercised according to the exigencies of each case.”

6. The facts in the present case are straight forward. The charge read that on the 13th day of October, 2022 at about 10. 00hours near Sotik Academy along Sotik-Chepilat road in Sotik Sub-county within Bomet county being the driver of motor vehicle Reg No KAZ 134G make Mitsubishi pickup did drive the said motor vehicle along the said public road without a valid inspection sticker expired on January 27, 2022.

7. The applicant took plea on October 13, 2022. He pleaded guilty to the charge and confirmed his guilty plea by accepting the facts as correct. The court entered a conviction. In mitigation the applicant apologized and asked to be pardoned and explained that he was taking the motor vehicle for repairs so as to take it for inspection.

8. The trial court rendered its verdict thus:-“Court – considers the mitigation and that the convict is first offender and hereby sentence the convict to serve 2 weeks in jail. Right of appeal explained.”

9. Section 29(i) of the Traffic Act provides:-(1)Any person who contravenes or fails to comply with any of the provisions of this part shall be guilty of an offence and liable on first conviction to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, and to each subsequent conviction to a fine not exceeding twenty thousand shillings or to imprisonment for a period not exceeding six months or to both.

10. It is clear from the above provision that the applicant was liable, being a first offender to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months. It is not true therefore as submitted by the applicant’s counsel that imprisonment was a default sentence. As the penalty is worded, imprisonment was an alternative sentence.

11. It is a principle of sentencing however that a convicted person ought to benefit from the least severe sentence. Where the law provides both a fine and a custodial sentence particularly in misdemeanors, the court, unless there exist exceptional circumstances, ought to consider a non-custodial sentence.

12. TheJudiciary Sentencing Policy Guidelines [2016] at paragraph 11. 5 states as follows:-“Preference for a fine 11. 5 Where the option of a fine is provided, the court must first consider it before proceeding to impose a custodial sentence. If, in the circumstance a fine is not a suitable sentence, then the court should expressly indicate so as it proceeds to impose the available option.”

13. Another legal principle in sentencing is that where the law provides for a fine or imprisonment or both then unless the court for good reasons decides to give both, the accused person has a right to be given the option for a fine. This principle was aptly stated in Annis Muhidin Nur v Republic, High Court Criminal Appeal no 98 of 2001 (UR), Mwera J (as he then was) held thus:-“…..unless circumstances obtain which irresistibly(impede) a trial court from imposing a fine where the law provides for a fine in default of a prison term, the option of a fine must be visited first. This is a sound and tested principle in the art of sentencing…..”

14. In the present case, the applicant was stated to be a first offender. He indicated that he was remorseful. He also explained why he was driving a vehicle without a sticker. He ought to have benefitted from the least severe punishment provided by law. I find that the trial court was in error to sentence him to imprisonment without an option of fine.

15. I set aside the 2 week custodial sentence and substitute therefor a fine of seven thousand shillings. (Kshs 7,000/=) which is reduced to Kshs 5,000/= in view of the fact that the applicant served 2 days imprisonment. It is noted that the applicant was granted bail two days into the prison sentence and that therefore this revision has not been overtaken by events.

16. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 10*TH DAY OF NOVEMBER, 2022. .........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the Prosecution, and Kiprotich (Court Assistant) and in the absence of Mr.J.K Rono for the Applicant.