https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11811

Manyara v Republic (Criminal Revision E565 of 2025) [2026] KEHC 11811 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 11811 (KLR) Republic of Kenya In the High Court at Embu Criminal Revision E565 of 2025 RM Mwongo, J July 29, 2026 Between David Kingori Manyara Applicant and Republic Respondent Ruling The Charges 1.The applicant was charged with 3 counts of traffic offences, namely: Count 1- Driving a commercial vehicle under the influence of alcohol, contrary to section 44(1) of the Traffic Act; Count 2- Causing obstruction on a public road contrary to section 53(1) of the Traffic Act; and Count 3 - Failing to stop on being required to do so by a police officer in uniform, contrary to section 52(1)(c) of the Traffic Act. 2.The appellant pleaded guilty to all the charges and he was convicted on his own guilty plea. He was sentenced as follows:a.On the 1st count: to pay a fine of Kshs.30,000/=, in default 12 months imprisonment;b.On the 2nd count: to pay a fine of Kshs.20,000/=, in default 12 months imprisonment;c.On the 3rd count: to pay a fine of Kshs.20,000/=, in default 6 months imprisonment;The imprisonment sentences in default of a fine to run consecutively. The Application 3.The applicant filed the application herein seeking review of the sentences imposed. The review pleads to the Court to:a)Consider granting a non-custodial sentence and constitutional principles of restorative justice.b)Consider reducing the total fine of Kshs.70,000 to a lesser amount.c)Consider ordering the sentences to run concurrently. 4.He based his prayers on the fact that the offences occurred within the same transaction, that he was a first offender and that he was remorseful and has since changed his ways through the time he has spent in incarceration. He urged the court to consider Articles 10, 28 and 51(1) of the Constitution in considering his application and applying its discretion. Parties’ Submissions on the application 5.The application was canvassed by way of written submissions. 6.In his submissions, the appellant relied on Articles 165(6) and (7) of the Constitution and sections 362 and 364 of the Criminal Procedure Code which provisions avail the High Court its revisionary power. He prayed that the court considers ordering that the sentences run concurrently in the interest of justice. He placed reliance on the Judiciary Sentencing Policy Guidelines 2023 and urged the court to allow his application both to reduce the fines imposed and order that the sentences run concurrently. 7.On its part, the respondent acknowledged the revisionary jurisdiction of the court as bestowed under sections 362-366 of the Criminal Procedure Code. It submitted that the sentences imposed are not the maximum sentences prescribed by the Traffic Act for each of the offences. It relied on the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where the Supreme Court frowned upon interfering with sentences prescribed in law. It also relied on Guideline 2.3.26 of the Judiciary Sentencing Policy Guidelines. The respondent urged the court to dismiss the application. Issue for Determination 8.The only issue for determination is whether the sentences imposed by the trial court should be revised. Analysis and determination 9.The revisionary power of the High Court is drawn from Article 167(6)&(7) of the Constitution which provides:“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” 10.Section 362 of the Criminal Procedure Code provided as follows on the High Court’s supervisory jurisdiction:“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.” (Emphasis added) 11.These provisions do not limit the kind of orders that many be considered by the High Court in revision, hence an order on sentence is one of them. The court, in this case has jurisdiction to entertain the applicant’s application and satisfy itself as to the correctness, legality, propriety or regularity of the orders issued. 12.Following conviction, the applicant was sentenced to pay a fine of Kshs.30,000/=, in default 12 months imprisonment on the 1st count; a fine of Kshs.20,000/=, in default 12 months imprisonment on the 2nd count; and a fine of Kshs.20,000/=, in default 6 months imprisonment on the 3rd count. 13.For these offences, the Traffic Act provides for a fine of up to Kshs.100,000/= or imprisonment for 2 years on the 1st count; a fine of Kshs.30,000/= or imprisonment of 1 year, or both for the 2nd count; and a fine of between Kshs.10,000/= and 20,000/= or imprisonment for 6 months, or both for the 3rd count. 14.In the present case, the court pronounced that the imprisonment sentences would run consecutively. The applicant’s prayer is that the sentences ought to run concurrently. The presumption of the law at the point of sentencing for multiple offences is that the sentences will run consecutively. Section 14 of the Criminal Procedure Code provides thus:“(1)Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.” (Emphasis added) 15.Regarding sentences in the form of imprisonment in default of payment of a fine, section 37 of the Penal Code provides:“Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof.” (Emphasis added) 16.This position is buttressed by the Judiciary Sentencing Policy Guideline 2.3.28 which states: “In the case of imprisonment in default of payment of a fine, the sentence cannot run concurrently with a previous sentence.” 17.To state whether the sentences runs concurrently or consecutively is a preserve of the trial/sentencing court, and it specifies this through its discretion as provided under the Judiciary Sentencing Policy Guidelines 2023 as follows:“2.3.21Notwithstanding the provisions under the Criminal Procedure Code and the Penal Code summarised in paragraph 2.3.4 above, the discretion to impose concurrent or consecutive sentences lies with the court. There are two elements to the concept of totality, and these apply as much to terms of imprisonment as they do to community service and fines.” Conclusion and Disposition 18.Given the foregoing discussion, the sentences imposed by the trial court, which are imprisonment in default of the payment of fines, cannot run concurrently as to make such an order would be in contravention of the law. 19.On the applicant’s prayer as to whether the fines imposed can be reduced, section 28(1)(b) of the Penal Code gives the trial court discretion to impose a fine as it deems just. Given the circumstances of the case and the recommended sentences prescribed in the Traffic Act, the fines imposed are both lawful and just, and there is no basis to review them downwards. 20.The application herein is hereby dismissed in its entirety. The orders of the trial court are upheld as lawful and just. 21.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 29TH DAY OF JULY, 2026.....................R. MWONGOJUDGEDelivered in the presence of:1. Applicant Present in Court2. Ms. Mwaniki for the Respondent3. Francis Munyao - Court Assistant