https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7548

Munyaka v Republic (Criminal Appeal E025 of 2021) [2026] KEHC 7548 (KLR) (Crim) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7548 (KLR) Republic of Kenya In the High Court at Isiolo Criminal Criminal Appeal E025 of 2021 SC Chirchir, J June 2, 2026 Between Daniel Mwangi Munyaka Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. V.Ochanda delivered on 12th October 2021 in Muranga chief Magistrate’s court Traffic case No448 of 2018) Judgment 1.The Appellant was charged before the trial Court with the offence of careless driving contrary to Section 49(1) of the Traffic Act. 2.The particulars of the charge were that:- on the 29th day of March 2018 at about 1600 hours along Muranga-Sagana road at Nokras Hotel Area within Muranga County, being the driver of Motor Vehicle registration Number KAW 864L make Premio Corona, drove the said Motor Vehicle without due care and attnection to other road users, in that he left his traffic lane, swerved to the right and hit Motor Vehicle registration Number KCF 198C make Toyota Hiace of Nyena Sacco ending up damaging the said vehicle. 3.He was taken through a full trial, convicted of the offence and sentenced to pay a fine of Ksh. 200,000 or serve a prison term of 3 years, in default of the fine. 4.He was aggrieved by the outcome and proffered this Appeal. Memorandum of Appeal. 5.The Appellant has presented the following grounds of Appeal:-a.The learned trial Magistrate erred in Law and fact by convicting the Appellant for an offence of careless driving contrary to Section 49(1) of the Traffic Act Cap 403 Laws of Kenya in the absence of any evidence adduced by the prosecution proving all the ingredients necessary under Section 49(1) of the Traffic Act beyond reasonable doubt.b.The learned trial Magistrate erred in Law and fact by convicting the Appellant for an offence of careless driving under Section 49 (1) of the Traffic Act based on insufficient and conflicting evidence by the prosecution witnesses.c.The Learned trial Magistrate erred in law and fact by convicting the Appellant after exhibiting total bias towards the Appellant in the whole trial process.d.The learned trial Magistrate erred in land and fact by sentencing the appellant for a prison term of three (3) years or an option of a fine of Ksh. 200,000 which sentence and fine was excessive and not commensurate with the facts surrounding the circumstances of the traffic offence.e.The Learned trial Magistrate erred in law and fact by imposing a prison sentence of three (3) years or a fine of Ksh. 200,000 without taking into consideration at all the mitigation offered by the appellant before the sentencing. 6.The Appeal was heard by way of Written Submissions. Appellants Submissions 7.It is the Appellant’s first Submissions that, under Section 49(1) of the Traffic Act, being the Section of the Law under which the Appellant was charged, there is no offence known as “careless driving”. It is thus argued that the Appellant was charged for a non-existing offence under the traffic Act, and the evidence led was to equally prove a non-existent offence. That by the close of the Prosecution’s case no attempt had been made to amend the charge sheet. 8.The Appellant further argues that in the event, the Appellant was convicted of an offence which did not exist, rendering the conviction and the entire trial a nullity. 9.The Appellant has relied on the following decisions to buttress his submissions.a.Nairobi H.C Criminal Appeal No. 26 of 2018.Nicholas Munge Kasuku vs Republic.b.Bernard Opiyo Ouma vs Republic [2018] eKLRAs quoted in paragraph 18 of Appeal (a) above.c.Machakos H.C. Criminal Appeal No. 56 of 2019(Paragraphs 38-40 thereof)d.Court of Appeal at NairobiCriminal Appeal No. 645 of 2010Henry O. Edwin vs Republic(Paragraph) 20 thereof) 10.The Appellant therefore seeks for the quashing of the conviction, the setting aside of the sentence and the refund of Ksh. 200,000 which he has already paid. Respondent’s Submissions 11.The Appellant concedes to the Appeal and states the charge sheet was fatally defective. Analysis and Determination 12.There are only two, issues on this Appeal namely; whether the charge was defective and whether the offence of careless driving was proved. Whether the charge was defective 13.The Appellant was charged with the offence of careless driving contrary to Section 49(1) of the Traffic Act.The above Section of the traffic Act provides as follows:Driving without due care and attention(1)Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and liable—(a)for a first offence, to a term of imprisonment not exceeding one year or a fine not exceeding one hundred thousand shillings;(b)for a second or subsequent offence, to a term of imprisonment not exceeding two years or to a fine not exceeding two hundred thousand shillings,and the court may exercise the power conferred by Part VIII of suspending any driving licence or provisional driving licence held, by the offender disqualified from holding or obtaining a driving licence for a period of twelve months starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later. 14.Prior to December, 2012, the offence set out under the same section was careless driving. The Section was however amended by the Traffic (Amendment) (No.2 ) Act 2012( Act No. 38 of 2012). The Amendment came into effect on 1st December 2012. The amendment resulted in the deletion of “careless driving” and substitution with “driving without due care and attention”. 15.I agree with both parties therefore that at the time the Appellant was charged on 02/5/2018 there was no such offence as “careless driving” known to the traffic Act. 16.Article 50 (2) of the constitution sets out the rights of an accused person, and under Article 50 (2) (h) the rights of an accused person include the right “not to be convicted for an act or omission that at the time it was committed or omitted was not, interalia , “ An offence in Kenya.” 17.The arraignment of the Appellant for the offence of careless driving and the subsequent conviction therefore, was an infringement of Article 50 (2)h of the Constitution, rendering both the proceedings and conviction void. 18.The next question is whether the defect is eligible for cure under Section 382 of the Criminal Procedure Code. The section provides:Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has in fact occasioned a failure of justice.” 19.However, the defectiveness in this case offends Article 2 (4) of the Constitution, which nullifies any law inconsistent with the constitution, and invalidates any act done in contravention of the constitution. In other words, a Constitutional infraction and is therefore not curable, by section 382 of the criminal procedure code. 20.I also rely on the Court of Appeal decision in the case of Henry O. Edwin vs Republic [2015] KECA 832 (KLR) where the Court adopted with approval the High Court decision in Sigilani vs Republic [2004] 2KLR 480 where it was held: “The principle of the law governing charge sheet is that an accused should be charged with an offence known in Law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence”. 21.The charge was incurably defective, the proceedings were a nullity and the conviction therefore had no foundation. 22.The Appeal succeeds. The conviction of the Appellant is hereby quashed and sentence set aside. The amount of Ksh. 200,000 to be refunded to him forthwith. DATED, SIGNED AND DELIVERED VIRTUALLY, AT ISIOLO, THIS 2ND DAY OF JUNE, 2026S. CHIRCHIRJUDGEIn the presence of:-Roba Katelo-Court AssistantNo appearance by the parties