Kipsat v Republic & another (Criminal Miscellaneous Application E053 of 2026) [2026] KEHC 11206 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL DIVISION** **HIGH COURT CRIMINAL MISCELLANEOUS APPLICATION NO. E053 OF 2026** **DAVID AIYABEI KIPSAT......................................................................................APPLICANT** **-VERSUS-** **REPUBLIC.............................................................................................................RESPONDENT** **-AND-** **MICHAEL KIPKORIR KIMELI..........................................................INTERESTED PARTY** **RULING** 1. By a Notice of Motion dated 11.5.2026, the Applicant sought orders staying and, ultimately, terminating the criminal proceedings against him in Kilifi Chief Magistrate's Court Traffic Case No. E052 of 2026, *Republic v David Aiyabei Kipsat*, in which he is charged with carrying excess load contrary to section 55(2) as read with section 58(1) of the Traffic Act, Cap. 403. 2. The application was opposed by the Respondent's Grounds of Opposition dated 28.6.2026. The Applicant filed a further affidavit and written submissions while the Respondent opted to rely on their grounds of opposition already on record. **Brief Summary of Facts** 1. The Applicant was arrested on 19.3.2026 and charged with driving motor vehicle registration number KCE 399E with an alleged gross weight of 31,319.2 kilograms against a permissible weight of 26,000 kilograms, an alleged excess of 5,319.2 kilograms. 2. He contends that the vehicle was empty at the material time and that no weighbridge ticket, axle-load report or related documentation has been produced. 3. The application proceeded through a series of interlocutory orders culminating in an *inter partes* hearing on 28.6.2026, following which the Respondent filed Grounds of Opposition and the Applicant filed a Further Affidavit and Written Submissions. 4. Trial in **Kilifi MCTR No. E052 of 2026** has not commenced. No witness has testified and no evidence, prosecution or otherwise, has yet been led before the trial court. **The Applicant's Case** 1. The Applicant's case is that the charge lacks any disclosed scientific or evidentiary foundation and that its continued prosecution amounts to an abuse of the court process, violating his rights under Articles 47 and 50 of the Constitution. 2. He urges the Court to stay and ultimately terminate the proceedings, or, in the alternative, to compel disclosure of the underlying weighing records before trial. 3. The Application is primarily premised on the following grounds; 4. *THAT on the 19th day of March, 2026 the applicant was arrested and charged in Kilifi MCTR NO E.52 OF 2026 REPUBLIC -----VERSUS----- DAVID AIYABEI KIPSAT and the nature of offence was that he was allegedly found driving A motor Vehicle Registration number KCE 399E make A SHOCK LEYLAND on a public road with A load greater than specified contrary to section 55(2) as read with Section 58(1) of the Traffic Act Cap 493 Laws of Kenya.* 5. *THAT the alleged offence of carrying excess load is legally dependent on scientific measurement, namely weighbridge verification, which is completely non-attending.* 6. *THAT there exists no weighbridge report, no load data, and no axle configuration analysis to support the charge in trial Magistrate court* 7. *THAT there are no KENHA compliance or enforcement documents to demonstrate any violation of axle load regulations.* 8. *THAT in the absence of such mandatory evidence, the charge is speculative, arbitrary, and legally unsustainable.* 9. *THAT the motor vehicle in question was empty at all material times, a fact confirmed by Photographic evidence and the court's own unconditional released order.* 10. *THAT the court did not issue any order for offloading or load reduction, which would have been mandatory if excess load existed.* 11. *THAT the prosecution is therefore pursuing a non-existent offence, rendering the proceedings frivolous, vexatious, and oppressive.* 12. *THAT the charge sheet offends Section 134 CPC as it fails to disclose essential particulars of an offence.* 13. *THAT this Honourable Court is empowered under Section 89(5) CPC to reject and strike out such a charge in limine for being abuse of court process and justice* 14. *THAT case at chief Magistrate court Kilifi MCTR E052 OF 2026 is scheduled for Hearing on 6th July, 2026 and the Respondent have not supplied the accused person/Applicant with required necessary documents for preparation of hearing as required by law.* 15. *THAT the continued prosecution violates the Applicant's constitutional rights under Articles 47 and 50 of the Constitution Kenya.* 16. *THAT the Applicant is prejudiced by ongoing proceedings at chief magistrate court.* 17. *THAT this Honorable Court bestowed supervisory jurisdiction to grant the orders sought exdebito justitiae.* **The Respondent's Case** 1. The Respondent contends that the application is premature, that the issues raised are properly for determination by the trial court, and that the charge sheet discloses an offence which the Applicant will have full opportunity to challenge at trial, including by cross-examination and a submission of no case to answer. 2. The State Respondent specifically submitted as follows; 3. THAT the Notice of Motion is misconceived, incompetent, premature and an abuse of the due process of this Honourable Court. 4. THAT the Applicant has failed to establish any legal or constitutional basis to warrant the dismissal, termination or striking out of the criminal proceedings pending before the subordinate court. 5. THAT the allegations that the subject motor vehicle was empty at all material times and therefore incapable of carrying an excess load are disputed questions of fact which can only be determined upon the production and testing of evidence before the trial court. 6. THAT the Applicant's contention that the prosecution lacks sufficient evidence is a matter that goes to the weight and sufficiency of the evidence and not to the legality of the charge or the jurisdiction of the trial court. 7. THAT the Applicant has prematurely invited this Honourable Court to evaluate the prosecution's evidence before the commencement of the trial, contrary to the established principles governing criminal proceedings. 8. THAT the charge sheet as drawn discloses an offence known in law under sections 55(2) and 58(1) of the Traffic Act and contains sufficient particulars to inform the Applicant of the nature of the charge facing him. 9. THAT the Applicant has not demonstrated how the charge sheet offends section 134 of the Criminal Procedure Code, and any alleged defect, if at all, is a matter that can properly be raised before the trial court. 10. THAT section 89(5) of the Criminal Procedure Code is inapplicable in the circumstances of this case, the charge having already been admitted by a court of competent jurisdiction and criminal proceedings having commenced. 11. THAT the release of the motor vehicle does not, by itself, render the charge sheet defective, invalidate the prosecution or extinguish the criminal liability alleged against the Applicant. 12. THAT the Applicant has failed to demonstrate any violation of Articles 47 or 50 of the Constitution or any abuse of the criminal justice process that would justify this Honourable Court's intervention. 13. THAT the Director of Public Prosecutions is constitutionally mandated under Article 157 of the Constitution to institute and undertake criminal proceedings, and no evidence has been placed before this Honourable Court to demonstrate that the prosecution was instituted in bad faith, for an ulterior purpose or in abuse of the court process. 14. THAT the Applicant will have a full opportunity during the trial to challenge the admissibility, credibility and sufficiency of the prosecution evidence, to cross-examine witnesses and, where appropriate, make a submission that there is no case to answer. 15. THAT the subordinate court be allowed to proceed to their logical conclusion without unwarranted interference. **Issues for Determination** 1. Two issues arise for determination: (a) *Whether the application is premature, and if so, whether this Court should decline to intervene at this stage; and* *(b) Whether this Honourable Court Has Jurisdiction to Supervise, Stay or Terminate the criminal Proceeding Pending before the trial Court* **(a) *Whether the application is premature, and if so, whether this Court should decline to intervene at this stage*** 1. The trial in ***Kilifi Chief Magistrate's Court Traffic Case No. E052 of 2026, Republic v David Aiyabei Kipsat***, has not yet commenced. No witness has testified, and the prosecution has not yet called or tendered any evidence, including the evidence that the Applicant alleges has not been disclosed.. 2. More importantly, the Applicant has not placed before this Court any evidence that he, or his advocates, formally requested the weighbridge ticket, axle-load report, or any related documents from the investigating officer or the prosecution before filing this application. In the absence of evidence of such a request and a subsequent refusal, the allegation of non-disclosure is premature. The prosecution has neither been called upon nor had the opportunity to disclose or produce its evidence.. 3. As held in ***Meixner & Another v Attorney General [2005] 2 KLR 189,*** the trial court is ordinarily best placed to determine the sufficiency of the evidence underpinning a criminal charge. That principle applies with even greater force in the present case, where the trial has not yet commenced and the prosecution has not been afforded the opportunity to present its evidence. 4. The Respondent's Grounds of Opposition correctly identify that the Applicant's complaint is, at this stage, speculative. It assumes that the required documentation does not exist, rather than demonstrating that it was ever sought and denied. 5. For the foregoing reasons, I find that the application, in so far as it invites this Court to intervene before the commencement of the trial, is premature and devoid of merit. The Applicant has not demonstrated that he sought disclosure of the impugned material and that such request was declined. 6. In the circumstances, the trial court remains the proper forum, in the first instance, to receive the prosecution's evidence, determine any questions relating to disclosure, and assess the evidential issues arising therefrom. 7. ***Whether this Honourable Court Has Jurisdiction to Supervise, Stay or Terminate the criminal Proceeding Pending before the trial Court*** 8. An order staying or terminating criminal proceedings is, as held in ***Kuria & 3 Others v Attorney General [2002] 2 KLR 69,*** not to be granted lightly, and is reserved for cases where compelling an accused to stand trial would violate the fundamental principles of justice, fair play and decency, or where the proceedings are shown to be oppressive or vexatious. 9. The decision in ***Jirongo v Soy Developers Limited & 9 Others [2021] KESC 32 (KLR)*** affirms that a court should only intervene where the institution or continuation of criminal proceedings amounts to an abuse of the court process, the charge discloses no offence known to law, or the proceedings are actuated by mala fides or an ulterior motive. None of those circumstances has been demonstrated in the present case. 10. The charge sheet discloses an offence known to law under sections 55(2) and 58(1) of the Traffic Act, and no evidence has been placed before this Court to establish that the Respondent acted in bad faith or for an ulterior purpose. 11. The unconditional release of the motor vehicle, and the absence of any offloading order, are matters going to the weight of the evidence the prosecution will be required to establish at trial. They do not, without more, demonstrate that the prosecution was irrational or instituted in abuse of process. 12. The constitutional independence of the Director of Public Prosecutions under Article 157(6) of the Constitution, coupled with the public interest in the prosecution of criminal offences lawfully instituted, weighs against judicial interference with the trial process at this stage. 13. The power codified under Article 165(6) of the Constitution provides that the High Court holds supervisory jurisdiction over all subordinate courts and any other person, body, or authority exercising a judicial or quasi-judicial function. 14. This power should be exercised sparingly only when the lower court or tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. Further, for this Court to interfere, there must be a case of fragrant abuse of fundamental rights and freedoms. 15. Accordingly, I find that the Applicant has not demonstrated grounds warranting a stay or termination of the criminal proceedings. The matters he raises are properly matters of evidence and weight, to be tested and determined in the ordinary course of the trial. **DISPOSITION** 1. Having considered the pleadings on record, I find that the application is not merited and dismiss it on the following terms: (a) The Notice of Motion dated 11.5.2026 is hereby dismissed. (b) The proceedings in ***Kilifi Chief Magistrate's Court Traffic Case No. E052 of 2026, Republic v David Aiyabei Kipsat,*** shall proceed to trial without further delay. (c) Each party shall bear its own costs of the application. Dated and delivered at MALINDI this………….. 23RD day of ……JULY……2026. **C.AKAIGWA** **JUDGE**