[2011] KEHC 168 (KLR)
The court found that the sentence of 5 months imprisonment imposed on the applicant, a first offender convicted of careless driving under section 49(1) of the Traffic Act, was unlawful. The statute provides that a first offender is only liable to a fine not exceeding five thousand shillings, and imprisonment is only...
Source-derived case information.
- Citation
- [2011] KEHC 168 (KLR)
- Parties
- Appellant: Collins Matoke Mogaka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Revision Case 603 of 2011
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence set aside and substituted with a fine
- Legal Topics
- Sentencing Illegality, Careless Driving, Traffic Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Collins Matoke Mogaka
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence of 5 months imprisonment for a first offender convicted of careless driving under section 49(1) of the Traffic Act was lawful.
- 2 What is the appropriate sentence for a first offender convicted under section 49(1) of the Traffic Act.
Ratio Decidendi
The court found that the sentence of 5 months imprisonment imposed on the applicant, a first offender convicted of careless driving under section 49(1) of the Traffic Act, was unlawful. The statute provides that a first offender is only liable to a fine not exceeding five thousand shillings, and imprisonment is only an option for a second or subsequent offence, and even then, not exceeding three months. The court therefore set aside the unlawful sentence and substituted it with a fine of KShs.500, taking into account that the applicant had already served over one month in prison.
Court Disposition
sentence set aside and substituted with a fine
Orders
- The sentence of 5 months imprisonment is set aside.
- The applicant shall pay a fine of KShs.500 only in lieu of imprisonment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
REVISIONCASE NO. 603 OF 2011
COLLINS MATOKE MOGAKA............................................APPELLANT
VERSUS
REPUBLIC …………………………………........…………… RESPONDENT
RULING ON REVISION
The applicant, COLLINS MATOKE MOGAKA, was convicted for the offence of Careless Driving contrary to section 49 (1) of the Traffic Act. He was then sentenced to 5 months imprisonment.
He has come to the High Court seeking revision of the sentence, as he believes that the said sentence was excessive.
It is common ground that the applicant was a first offender. In the circumstances, the learned state counsel, Mr. Mulati, submitted that the sentence was illegal. He therefore conceded the applicant’s request for a revision of the sentence.
Section 49 (1) of the Traffic Actprovides as follows;
“Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration of other persons using the road shall be guilty of an offence and liable for a first offence to a fine not exceeding five thousand shillings, and for a second or subsequent offence to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding three months.”
Clearly, therefore, a first offender is liable to be fined.
Secondly, a person who commits a second or subsequent offence of careless driving is liable to a fine or imprisonment not exceeding 3 months.
Therefore, the imprisonment of 5 months is unlawful. I therefore set it aside. In lieu thereof, and considering that the applicant has already been in prison for over one month, I order that he pays a fine of KShs.500/- only.
Dated, Signed and Delivered at Nairobi this 10th day of November, 2011.
........................................
FRED A. OCHIENG
JUDGE