Kivandi v Republic (Criminal Revision E017 of 2026)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CRIMINAL REVISION NO. E017 OF 2026** **IN THE MATTER OF TRAFFIC CASE NO. E254 OF 2026** **PATRICK KIVANDI....................................................................APPLICANT** **VERSUS** **REPUBLIC............................................................................PROSECUTOR** **RULING** **Introduction** 1. This Court has called for and examined the record in Traffic Case No. E254 of 2026 before the Chief Magistrate's Court at Busia for purposes of satisfying itself as to the correctness, legality and propriety of the sentence imposed upon theApplicant, Patrick Kivandi, on 12th August 2026. 2. The record shows that the Applicant was charged with an offence relating to the use of a motor vehicle whose dimensions exceeded the maximum dimensions permitted by law, contrary to section 55(2) as read with section 58(1) of the Traffic Act, Cap. 403. 3. The particulars placed before the trial court were that on 10th August 2026 at about 0220 hours, motor vehicle registration number KDA, a two-axle motor vehicle, was being driven along the Kisumu-Busia Highway. Upon inspection at the weighbridge, its dimensions were recorded as approximately 8 metres in length, 2.3 metres in width and 4.40 metres in height. The record indicates that the length and width were within the prescribed limits, but the height exceeded the prescribed limit by **0.10 metres** and the vehicle did not have the requisite exemption permit. 4. The Applicant pleaded guilty. The prosecution presented the facts and exhibits, while mitigation disclosed that he was a first offender, was remorseful and had a young family dependent upon him. 5. The learned trial magistrate thereafter convicted the Applicant on his own plea of guilty and sentenced him to: *“Pay a fine of Kshs.500,000/= in default 1-year imprisonment.”* 1. The record further shows that on 13th August 2026 a letter was placed before the Chief Magistrate seeking review of the sentence, following which the matter was directed to be placed before the High Court for review. **Issue for determination** 1. The issue for determination is whether the sentence imposed upon the Applicant was legal, correct and proper, and, if not, what orders this Court ought to make in exercise of its revisionary jurisdiction. **Analysis and determination** 1. The jurisdiction of this Court is founded principally upon section 362 of the Criminal Procedure Code, which empowers the High Court to call for and examine the record of criminal proceedings before a 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 the proceedings. 2. **Section 364** of the Criminal Procedure Code empowers the High Court, upon examining the record, to alter or reverse a sentence or order where the circumstances warrant such intervention. 3. Revision is therefore a supervisory jurisdiction. It is not intended to substitute the High Court's discretion for that of the trial court merely because the High Court might have imposed a different sentence. However, where the sentence imposed is illegal, incorrect or beyond the jurisdiction conferred by statute, the High Court not only has jurisdiction to intervene but has a duty to correct the illegality. 4. In **Nzuki v Republic (Criminal Revision E136 of 2022) [2022] KEHC 13768 (KLR)**, the High Court considered a conviction for driving a motor vehicle whose dimensions exceeded the maximum dimensions contrary to section 55(2) as read with section 58(1) of the Traffic Act. The Court expressly held that section 58(1) provides for a maximum fine of Kshs.400,000/= or imprisonment for a term not exceeding two years or both. 5. The position is equally clear from the text of section 58(1) of the Traffic Act, which provides that a person who drives or uses on a road a vehicle in contravention of section 55 or 56 is liable to a fine not exceeding Kshs.400,000/=, or imprisonment for a term not exceeding two years, or both. The proviso further makes it clear that any prescribed scale under the Rules cannot result in a fine greater than the statutory maximum. 6. The Traffic Rules prescribe the maximum dimensions contemplated by section 55(2). Rule 41 and the Twelfth Schedule prescribe, among other dimensions, a maximum overall height of 4.3 metres for a motor vehicle or combination of vehicles. 7. In **Atei v Republic (Criminal Appeal E060 of 2021) [2022] KEHC 10073 (KLR)**, the High Court similarly considered an offence under section 55(2) as read with section 58(1) and confirmed that the statutory maximum under section 58(1) is Kshs.400,000/= or two years' imprisonment or both. 8. The importance of the statutory ceiling cannot be overstated. A sentencing court exercises judicial discretion within the limits prescribed by Parliament. It has no jurisdiction to impose a punishment exceeding the maximum expressly prescribed by the statute creating the offence. 9. In the present case, the learned trial magistrate imposed a fine of Kshs.500,000/=. That fine exceeds the statutory maximum of Kshs.400,000/= by Kshs.100,000/=. 10. The sentence is therefore illegal to that extent. It is not a mere question of whether the sentence was harsh or lenient. The trial court had no statutory power to impose a fine exceeding Kshs.400,000/=. 11. I also note that the default sentence imposed was one year imprisonment. Section 28(2) of the Penal Code provides that, in the absence of an express provision to the contrary, the maximum period of imprisonment in default of payment of a fine exceeding Kshs.50,000/= is twelve months. 12. The one-year default sentence imposed by the trial court was therefore within the statutory limit. The illegality lies in the amount of the fine itself. 13. The Court must consequently interfere only to the extent necessary to bring the sentence within the law. This approach is consistent with the authorities where an unlawful sentence has been corrected by setting aside the offending portion and substituting a lawful sentence. See, for example, **Moses Mutembei Mbae v Republic [2021] KEHC 8828 (KLR) and Mukhwana v Republic [2025] KEHC 14363 (KLR)**. 14. I have considered the fact that the Applicant was a first offender and pleaded guilty. I have also considered that the prosecution did not place before the court any previous criminal record and that the excess dimension was recorded as **0.10 metres** above the prescribed maximum. His Co-Accused was fined kshs 50,000/-. However, in these revision proceedings, the principal question is the legality of the sentence imposed, rather than a fresh exercise of sentencing discretion. 15. I am therefore satisfied that the appropriate order is to set-aside the unlawful fine of Kshs.500,000/= and substitute it with a similar fine imposed upon his co-accused. The default sentence of twelve months shall remain. **Determination** 1. In the result, I find that, the sentence imposed upon the Applicant, Patrick Kivandi, on 12th August 2026 was illegal to the extent that the fine of Kshs.500,000/= exceeded the statutory maximum prescribed by section 58(1) of the Traffic Act. 2. Accordingly, pursuant to sections 362 and 364 of the Criminal Procedure Code, I make the following orders: 3. **The sentence of Kshs.500,000/= fine in default of one-year imprisonment imposed upon the Applicant on 12th August 2026 is hereby set aside.** 4. **In substitution thereof, the Applicant shall pay a fine of Kshs 50,000/=, in default of payment thereof to serve twelve (12) months' imprisonment.** 5. **For avoidance of doubt, the period of imprisonment in default shall terminate upon payment or recovery of the fine in accordance with the law.** 6. **The conviction of the Applicant on his own plea of guilty is not disturbed.** 7. This Ruling shall electronically be transmitted to the parties. 8. The Deputy Registrar shall cause a copy of this ruling and the consequential order to be transmitted to the Chief Magistrate's Court at Busia for compliance and incorporation in Traffic Case No. E254 of 2026. Orders accordingly. **Signed, Delivered Virtually on Teams platform** **On this 21st day of August, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Hon. Mohochi S.M** **Presiding Judge**