[2013] KEHC 5891 (KLR)
The High Court found that the sentence imposed by the Resident Magistrate under Count I was unlawful because it exceeded the statutory maximum fine of Kshs.20,000 as stipulated under section 100(2) of the Traffic Act. The aggregate fine of Kshs.25,000 was therefore set aside. Additionally, the default imprisonment...
Source-derived case information.
- Citation
- [2013] KEHC 5891 (KLR)
- Parties
- Applicant: John Masira Isoe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 4 of 2013
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Sentences revised; fines and default imprisonment terms reduced to comply with statutory and judicial guidelines.
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Guidelines, Traffic Offences, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Masira Isoe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the sentence imposed under Count I exceeded the statutory maximum fine under section 100(2) of the Traffic Act.
- 2 Whether the default imprisonment term imposed was consistent with section 28(2) of the Penal Code.
- 3 Whether the imposition of maximum sentences on a first offender was contrary to established judicial policy.
Ratio Decidendi
The High Court found that the sentence imposed by the Resident Magistrate under Count I was unlawful because it exceeded the statutory maximum fine of Kshs.20,000 as stipulated under section 100(2) of the Traffic Act. The aggregate fine of Kshs.25,000 was therefore set aside. Additionally, the default imprisonment term of 8 months was inconsistent with section 28(2) of the Penal Code, which prescribes a maximum of 6 months for fines exceeding Kshs.15,000 but not exceeding Kshs.50,000. The court also held that imposing maximum sentences on a first offender was contrary to established judicial policy. Consequently, the sentences were revised to align with statutory limits and judicial...
Court Disposition
Sentences revised; fines and default imprisonment terms reduced to comply with statutory and judicial guidelines.
Orders
- Count I: Accused is fined Kshs.10,000; in default, to serve 2 months imprisonment.
- Count III: Accused is fined Kshs.5,000; in default, to serve 1 month imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL REVISION NO. 4 OF 2013
JOHN MASIRA ISOE …………………………………………….……………….. APPLICANT
-VERSUS-
REPUBLIC ……………………………………………………………………… RESPONDENT
ORDER ON REVISION
Pursuant to section 364(1) of the Criminal Procedure Code, and in thanking the Resident Magistrate Nyamira Law Court, Mr. Norbert Okumu, for reporting this matter to the High Court for purposes of Revision of his own decision, this court makes the following orders on Revision.
The sentence under Count I in Nyamira CM’s Court Traffic Case No. 57 of 2013 that: “Accused to pay fine of Kshs.20,000/= or serve 8 months in jail. Still under count 1 the law requires that for each excess passenger, the conductor, driver and owner of the vehicle be fined Kshs.5,000/=. I therefore fine the accused Kshs.5,000/= in default he will serve 2 months in jail” is unlawful to the extent that it imposes a fine of an aggregate sum of Kshs.25,000/=, thereby offending the Proviso under section 100 (2) of the Traffic Act which is in the following terms:-
“Provided that rules made under this Act may provide that a person who is guilty of an offence under this subsection shall be liable to pay a fine according to a prescribed scale, but so that no person shall be liable to pay a fine greater than the maximum provided by this subsection”.
The maximum fine for the offence under section 100(2) of the Traffic Act is Kshs.20,000/=.
In addition, the imprisonment term of 8 months in default of payment of the fine offends the guidelines given under section 28(2) of the Penal Code where in default of a fine exceeding Kshs.15,000/= but not exceeding Kshs.50,000/= the term of imprisonment should be 6 months.
Under Count III, the Resident Magistrate properly noted after the sentence, (and hence his report for purposes of revision) that the sentence provided for under section 61(4) of the Traffic Act is a fine not exceeding Kshs.10,000/= or to imprisonment for a term not exceeding 1 month.
It is also noted that the Court imposed the maximum sentences for a first offender contrary to judicial policy on sentencing as set out in the decisions of the Court of Appeal for Eastern Africa in Josephine Arissol –vs- Republic [1957] EA 447 and the High Court of Kenya (Porter Ag. J) in Otieno –vs- Republic [1983] KLR 295 that the general rule is that a maximum sentence should not be imposed on a first offender.
Accordingly, for the reasons set out above and taking note of the Prosecution’s statement on the Accused upon conviction and the Accused’s mitigation, the sentences are revised as follows:-
Count I – Accused is fined Kshs.10,000/=, in default the Accused to serve a term of imprisonment for 2 months.
Count III - Accused is fined Kshs.5,000/=, in default the Accused to serve a term of imprisonment for 1 month.
Dated and Signed at Kisiithis 4thday ofApril, 2013.
EDWARD M. MURIITHI
JUDGE